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What is First offender and can I use it?

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What is it? First offender treatment allows you to enter a guilty plea, but it is not considered a conviction. If you successfully complete all the terms of the sentence, the case will be dismissed, and you will be exonerated as a matter of law. This means that you can honestly say that you have not been convicted of a crime and all your civil rights are restored.

Can I use it? The answer is a lawyer’s favorite, it depends. If you have been charged with a crime and have never pleaded guilty to or been convicted of a felony, you may be eligible for First offender treatment under OCGA § 42-8-60. There are certain charges that, by statute, the answer is an automatic no. Offenses considered serious violent felonies (murder, armed robbery, kidnapping, etc.), most sex crimes, and DUI are not eligible. While, it can be used on both misdemeanor and felony offenses, it is generally advised not to use it on misdemeanors. However, every case is different. First offender is a once in a lifetime chance and once you use it, you can never use it again. It is important to discuss all your options with an attorney before making the decision to use or decline first offender.

What else should you know? The decision to grant first offender is entirely up to the judge; even if you are eligible there are times that a judge will not allow it. There are risks to using first offender. If you violate probation, the judge has the right to bring you back, adjudicate you guilty and resentence you to the maximum punishment with credit for the time you were on probation. For example, your sentence is 5 years, the max for the offense is 10 years and you violate your probation after 2 years. The judge can increase your sentence from 5 years to 10 years, but you would get credit for the 2 years. That would leave you with 8 years left and you would be a convicted felon. Now, that doesn’t mean that just because you violate your probation the judge will automatically do that. It really comes down to what the violation is. This makes it very important to have an attorney with you for any sort of probation revocation proceeding.

First Offender

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If you have been charged with a felony offense (with some exceptions) and have never pleaded guilty to or been convicted of a felony, you may be eligible for First Offender treatment under OCGA § 42-8-60. Charges that are considered serious violent felonies, e.g. murder, armed robbery, kidnapping, etc and sexual offenses are not eligible for First Offender treatment.

First Offender allows you to enter a plea to the offense, but it is not considered a conviction. If you successfully complete all the terms of the sentence, the case will be discharged and you will be exonerated as a matter of law. This means that you can honestly say that you have not been convicted of a felony and all of your civil rights are restored.

This is a once in a lifetime opportunity and if you or a loved one has been charged with a felony offense and you think you might be eligible for First Offender, please give us a call at 404-581-0999.

 

The Georgia First Offender Act

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The First Offender Act is a progressive statute implemented by the State of Georgia where a person who has never been convicted of a prior felony offense can be sentenced on a pending charge, but subsequently, have those charges sealed by the court if he/she successfully completes their First Offender sentence.

According to O.C.G.A. § 42-8-60, the accused may be eligible under the First Offender Act if the following statements are true:

  • The accused has never been convicted of a felony;
  • The accused have never been previously sentenced under the First Offender Act;
  • The offense charged is not a serious crime committed against a law enforcement officer engaged in his/her duties;
  • The offense charged is not Driving Under the Influence (O.C.G.A. § 40-6-391);
  • The offense charged is not a serious violent felony (O.C.G.A. § 17-10-6.1);
  • The offense charged is not a serious sexual offense (O.C.G.A. § 17-10-6.2);
  • The offense charged is not related to child pornography (O.C.G.A. § 17-10-100.2);
  • The offense charged is not related to electronic sexual exploitation of a minor, computer pornography (O.C.G.A. § 17-10-100);
  • The offense charged is not trafficking of persons for labor or sexual servitude (O.C.G.A. § 16-5-46); and
  • The offense charged is not neglecting disabled adults or elderly people (O.C.G.A. § 16-5-101).

HOW IT WORKS

Trial counsel for the accused must ask the judge to sentence him/her under the First Offender Act. Then, the judge will consider whether to sentence the accused to First Offender after he/she hears arguments from both the prosecution and the defense. If the judge sentences the accused under First Offender, his/her official criminal history will describe the disposition of the crime charged as “First Offender” until the sentencing term is successfully completed. If the accused violates any conditions placed on him/her during their term of sentence, including committing another crime, the judge has the discretion to revoke the First Offender status. This means that the accused will be sentenced and convicted, which will be shown on his/her official criminal history. In revoking one’s status, the judge does have discretion to sentence the accused to the maximum penalty for the crime charged. However, if the term of sentence is successfully completed, the clerk of court will seal the offense charged from his/her official criminal history.

CONTACT US

At the Law Offices of W. Scott Smith, our attorneys are knowledgeable about the consequences of a criminal conviction on one’s record, as well as all possible options for our clients dealing with pending allegations. Therefore, if you have been recently arrested on a criminal charge or your case is currently pending, please call our office today at 404-581-0999 for a free consultation.

First Offender Sentencing in Georgia

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First offender treatment is available in Georgia for anyone who has not been previously convicted of a felony and is not charged with a serious violent felony. Serious violent felonies are murder, felony murder, armed robbery, kidnapping, rape, aggravated child molestation, aggravated sodomy, and aggravated sexual battery. Anyone charged with one of those offenses is automatically ineligible for first offender unless the charge is reduced to a lesser offense.

If a defendant receives first offender treatment, it can be both a blessing and a curse. If there are no issues during the period of probation, then no official conviction will ever be reported and the record itself will seal from public view. However, if the defendant commits a new offense while on probation or has any issues at all, then the judge has discretion to revoke the first offender status and re-sentence the defendant up the maximum sentence allowed by law.

While serving the sentence which will undoubtedly involve a period of probation, the defendant is not technically convicted of a crime but still cannot possess a firearm. After successful completion, all gun rights are restored.

Finally, first offender status can be granted retroactively if the defendant was eligible for first offender treatment at the time of the original plea but was not informed of his or her eligibility. Still, there is discretion, and the judge must find by a preponderance of the evidence that the ends of justice and the welfare of society are served by granting retroactive first offender status.

If you are charged with a crime in Georgia, then you should always consult with an attorney as to whether you are a candidate for first offender treatment. If you have already pled guilty, then you should still reach out to discuss whether you can receive retroactive first offender treatment. Give us a call today at 404-581-0999.

First Offender Act

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First Offender Act: Retroactive Treatment

Many people make mistakes in their youth.   For some of us, those mistakes went without tremendous consequence, but for others their mistakes cost them their freedom and labeled them a criminal for the rest of their lives.  Our firm has met with Georgia residents that have criminal histories that continue to haunt them and their career prospects.   Several people had heard about expunging their records from either the internet or friends.  Unfortunately, not everyone was eligible for expungment and, until recently, there wasn’t much we could do.  But now, with the passing of a new law, there is hope for some non-violent offenses to be removed from someone’s record with the use of the First Offender Act.

Traditionally, the First Offender Act is a tool that can be used in a plea deal for certain non-violent offenses like theft or drug charges.   The First Offender Act gives a probationer the opportunity to complete probation in exchange for having the Judge withhold adjudication and seal the probationer’s record.   The purpose of the act is to allow Georgia citizens the ability to not have one mistake ruin their lives.    Unfortunately, not everyone was aware of the First Offender Act and some individuals may have entered guilty pleas without really understanding the long term consequences of a criminal history.  The Georgia General Assembly recognized the problem and passed a new law that would allow some individuals to retroactively petition the court for treatment under the First Offender Act.

In order to have the First Offender Act apply retroactively the petitioner would have to file a petition with the court and obtain permission from the both the prosecutor and the Judge to apply the First Offender Act retroactively.   The Judge then is required to schedule a hearing where the petitioner can introduce evidence of the progress they have made after their earlier conviction.   If the Judge grants the petition, then the petitioner’s criminal history will be sealed in accordance to the First Offender Act.

We were excited to hear the news of this new provision of the First Offender Act.   If you have been convicted of a crime and feel that you may be eligible to have your record sealed, call our office immediately at 404-581-0999.   Our lawyers can help answer any questions you may have about the First Offender Act.