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Georgia Criminal Law – Accusations, Indictments, and Demurrers

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We tend to think a criminal case begins when a police officer arrests a person. Although a person is arrested for a criminal offense, a formal charging document must be drafted and filed by the prosecutor if the charges are to be formally prosecuted.

There are two types of formal charging documents in Georgia, accusations and indictments. This blog article will discuss the differences between these charging documents, when these charging documents must be filed, the basic language required to be included, and the potential attacks on these documents.

Accusations

In misdemeanor cases in Georgia, a prosecuting attorney may draft an accusation charging a defendant with criminal offenses. O.C.G.A. § 17-7-71. An accusation is sufficiently technical and correct if the offense stated in the terms and language of the statute. O.C.G.A. § 17-7-71(c). The prosecutor has the authority to amend the accusation prior to trial so long as the defendant or their lawyer is given notice.

Indictments

Although a person’s federal constitutional right to a grand jury does not apply to the States (Hurtado v. California, 110 U.S. 516 (1884)), a person in Georgia has a statutory right to a grand jury indictment for most felonies. O.C.G.A. § 17-7-70. Ordinarily, a prosecutor may not proceed to trial without a grand jury’s “true bill” of the proposed indictment. A defendant may waive the right to a grand jury indictment in writing and proceed to trial on an accusation (for non-capital offenses) or may waive by entering a plea to the accusation.

Like an accusation, an indictment is sufficiently technical and correct if the offense is stated in the terms and language of the statute. O.C.G.A § 17-7-54. But, unlike accusations, an indictment may not be materially amended by removing or adding to the allegations or charges.

Drafting Requirements

The language of an indictment or accusation must:

  • Be “legally sufficient” to state a crime; and
  • Put the defendant on “due process” notice of what he / she must defend against at trial

An accusation or indictment that fails to allege the essential elements of a crime is insufficient as a matter of law. If the accused can admit to all of the allegations in the accusation or indictment and still be innocent of a crime, then the language is legally insufficient. This is the legal test of a “general demurrer.” A general demurrer is a powerful tool in the defense lawyer’s arsenal.

Due process requires the accusation or indictment to adequately inform the nature of the crime being charged as to enable the defendant to prepare a defense and avoid surprises at trial. Failure to do so exposes the accusation or indictment to a “special demurrer.” A special demurrer attacks the accusation or indictment by asking not whether the charging document could have been made more definite and certain, but whether it contains the elements of the offense intended to be charged, and sufficiently apprises the defendant of what he / she must be prepared to meet. Broski v. State, 196 Ga. App. 116 (1990).

Filing Deadlines

An accusation or indictment must be filed with the Clerk of Court before the expiration of the applicable statute of limitations for the crimes charged. Statutes of limitation run from the date of the alleged offense to the date the accusation or indictment is filed.

There are different periods of time for different types of offenses. For example, there is no statute of limitations for the offense of murder. Other felony crimes that are punishable by death or life in prison contain a seven (7) year statute of limitations (except forcible rape – 15 year statute of limitations; certain felony offenses where DNA evidence is used to establish identity of the accused – no statute of limitations; crimes against children committed on and after July 1, 2012 – no statute of limitations). Most felonies have a four (4) year statute of limitations. Misdemeanors have a two (2) year statute of limitations.

An applicable statute of limitations period may be suspended or tolled if:

  • The accused is not usually and publicly a resident in Georgia
  • The person committing the crime is unknown or the crime is unknown
  • The accused is a government officer or employee and the crime charged is theft by conversion or public property while the person is such an officer or employee
  • The accused is a guardian or trustee and the crime charged is theft by conversion of public property of the ward or beneficiary

O.C.G.A. § 17-3-2. It is important to note the prosecution is not constrained to prove the date alleged in the accusation or indictment, but may prove the offense occurred at any time within the statute of limitations. If this occurs, the defense may be entitled to a continuance due to surprise.

Contact Us

If you or someone you know has been arrested, contact the law firm of W. Scott Smith at 404.581.0999 today for a free case evaluation. You’ll find a local Atlanta attorney ready to aggressively fight on your behalf. You can also find out more detailed information about Atlanta laws here.

Georgia Criminal Law – Perjury

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Perjury is a serious offense that causes immeasurable harm to the functioning and integrity of our legal system and to private individuals. As such, a conviction of perjury can have serious consequences on the accused. This article aims to explore the nature of perjury, possible punishment, and available defenses.

The Offense

O.C.G.A. § 16-10-70 provides, “a person to whom a lawful oath or affirmation has been administered commits the offense of perjury when, in a judicial proceeding, he knowingly and willfully makes a false statement material to the issue or point in question.”

Thus, the essential elements of perjury are: (1) knowingly and willfully making a false statement, (2) material to the issue or point in question, (3) while under oath in a judicial proceeding. Sneiderman v. State, 336 Ga.App. 153 (2016). Perjury is different from the offense of “false swearing” in that perjury requires both the intent to testify falsely and the act of false testimony, as opposed to swearing rashly or inconsiderately, according to belief (false swearing). Gates v. State, 252 Ga.App. 20 (2001).

The test of “materiality” is whether false testimony is capable of influencing tribunal on issue before it. U. S. v. Cosby, 601 F.2d 754 (1979).

Possible Punishment

A person convicted of perjury can be punished by a fine of up to $1,000.00 or by imprisonment for between one and ten years, or both. If the person convicted of perjury was the cause of another person being imprisoned will be sentenced to a term of imprisonment no greater than the sentence for which the other person was convicted. Further, if a person convicted of perjury was a cause of another person being punished by death, the perjurer shall be punished by life imprisonment.

Defenses

  • Defendant was not under oath at the time the statement was made.
  • The false statements were not “material.”
  • The false statements were not knowingly or willfully made.
  • Defendant’s belief that his testimony was truthful constitutes absolute defense to charge of perjury regardless of whether the testimony is actually false. Richards v. State, 131 Ga.App. 362 (1974).

Contact Us

If you or someone you know has been arrested, contact the law firm of W. Scott Smith at 404.581.0999 today for a free case evaluation. You’ll find a local Atlanta attorney ready to aggressively fight on your behalf. You can also find out more detailed information about Atlanta laws here.

Georgia Criminal Lawyer – Identification of Suspects

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Under Georgia law, the testimony of a single witness is sufficient to sustain a conviction (assuming the jury believes that witness). But, prosecutions based entirely or primarily on the testimony of a single eyewitness are said to be the most common cause of wrongful convictions.

This article will discuss the different types of identification procedures, factors that influence the precision of eyewitness identifications, case law dictating how and when a judge should filter out inherently suggestive procedures, and constitutional considerations regarding suppression of unduly suggestive identifications.

Types of Identification Techniques

O.C.G.A. § 17-20-2 provides that any law enforcement agency that conducts lineups shall adopt written policies for using such lineups.

Live Lineups

A live lineup consists of a row of 6 people, including the suspect. The witness is then asked to identify the suspect. Typically, these live lineups are done at the jail and inmates are used to fill the lineup. Someone who does not know the identity of the suspect conducts the lineup. The administrator is supposed to instruct the witness the perpetrator may or may not be present in the lineup. The lineup should be composed so the fillers generally resemble the witness’ description of the suspect. The lineup is to consists of at least four fillers. The administrator is supposed to document the witness’ statement as to their confidence level in their identification.

A suspect in custody may be forced to participate in a lineup because showing one’s physical characteristics is not considered “testimonial” for 5th Amendment purposes. U.S. v. Wade, 388 U.S. 218 (1967). If an in-custody suspect refuses to participate, the prosecutor may comment upon this refusal at a later trial. If a suspect is not in custody, court intervention may be required (upon proof of reasonable and articulable suspicion or probable cause). Importantly, an in custody suspect does NOT have the right to the presence of counsel at a lineup as these procedures occur prior to the formal initiation of charges. Kirby v. Illinois, 406 U.S. 682 (1972).

Show-ups

A show-up is any identification procedure that provides the eyewitness with only one choice. Although a show-up identification is inherently suggestive, it is not necessarily inadmissible. So long as a show-up is reasonably and fairly conducted at or near the time of offense, it will not be deemed impermissibly suggestive. Wallace v. State, 295 Ga. App. 452 (2009). A timely show-up aids in a speedy police investigation, especially in an emergency situation.

Photo Lineups

Also called “photo arrays,” these lineups consist of 6 photographs (including the suspect’s) displayed together to the witness and are conducted prior to the arrest of the suspect. After all, if the suspect is in custody a live lineup is preferred. Some law enforcement agencies present the photos to witnesses one at a time as an added layer of protection to the suspect so the witness will not just choose the photo most resembling the suspect. In a photo lineup the administrator is not supposed to know who the suspect, or, if they do know, use photos placed in folders which are randomly shuffled so the administrator doesn’t know who the witness is looking at until the procedure is complete. The administratior should tell the witness the suspect may or may not be in the photo lineup, use a minimum of five fillers, use fillers resembling generally the witness’ description of the suspect, and document statement of witness’s confidence in identification.

Again, suspects do not have the right to presence of counsel during a photo lineup because the preservation and documentation of the photo lineup is sufficient to protect suspect’s right to challenge the procedure.

In-Court Identification

At trial, an eyewitness is typically asked to identify the defendant in the courtroom (where they are sitting and what article of clothing they are wearing). A prosecutor is not allowed to ask a witness whether anyone in the courtroom resembles the perpetrator because this causes the witness to search for similarities.

Factors Affecting Accuracy of Identification

Identifications can be influenced by “estimator” and “system” variables. Estimator variables relate to the person making the identification: witnesses perceptive abilities, memory, and environmental factors. System variables include: method of ID (live lineup, photo array, show-up), how identification procedure was administered.

Constitutional Limitations

A pre-trial identification procedure will be suppress on Due Process grounds if such procedure:

  • Is deemed to have been “impermissibly suggestive,” and
  • Posed a “very substantial likelihood of misidentification.”

Carr v. State, 289 Ga. App. 875 (2008). An identification procedure is impermissibly suggestive if it would lead an eyewitness to an all but inevitable identification of the suspect. Russell v. State, 288 Ga. 372 (2007). In determining whther a “very substantial likelihood of misidentification” is present courts look to factors articulated in Neil v. Biggers, 409 U.S. 188 (1972).

  • Opportunity of the witness to view the criminal at the time of the crime
  • The witness’ degree to attention
  • The accuracy of the witness’ prior description of the accused
  • The level of certainty demonstrated by the witness at the time of confrontation
  • The length of time between crime and confrontation

Both the eyewitness’ pre-trial identification and in-court identification are admissible unless the defendant shows the identification fails to satisfy both prongs of the due process test.

Contact Us

If you or someone you know has been arrested, contact the law firm of W. Scott Smith at 404.581.0999 today for a free case evaluation. You’ll find a local Atlanta attorney ready to aggressively fight on your behalf. You can also find out more detailed information about Atlanta laws here.

 

 

 

 

Yes, Criminal Cases are Still Moving Forward in Georgia during COVID-19

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You may have received a traffic citation, or a citation for misdemeanor possession of marijuana or theft by shoplifting. The officer may have released you on citation instead of taking you to a local detention facility for arrest. This doesn’t mean your case should be ignored, or is not a big deal, now. Cases are being heard in most municipal courts in the State. In fact, many municipalities and counties may ask you to come in and provide fingerprints at a later date when conditions are more safe.

In the past week, our firm has been present for shoplifting, DUI, and marijuana cases in Roswell, Marietta, Acworth, Kennesaw, Douglasville, Sandy Springs, Jonesboro, Forest Park, and many other municipal courts across the state.

Having an attorney represent you at this time can prevent you from having to appear and potentially risk your health. An attorney can also work with the prosecutor to try and get you the best possible outcomes during this time, working on lowering fines, reducing community service, and preventing other activities that may put you at risk for coronavirus exposure.

Our office is available right now to discuss your case with you. Call us at 404-581-0999 for a free consultation. We understand you may be feeling nervous or scared during these uncertain times, and we are here to help.  

Georgia Criminal Law – How to Withdraw a Guilty Plea

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The vast majority of criminal cases are resolved through guilty pleas. Some people take guilty pleas because they are guilty as a matter of fact and law, while others take pleas even though they are innocent. But why would an innocent person plead guilty to a criminal charge? Trials can be a risky proposition. A plea deal that involves no jail time, reduced charges, or other mitigated punishment may be an attractive offer when faced with the possibility of losing at trial and being hit with a “trial tax.” A trial tax is the idea that if you go to trial and lose you will be punished more harshly by the judge than if you had just taken a plea. Due to the large percentage of cases that result in guilty pleas, there are of course a percentage of those cases where the person, for whatever reason, decides they want to withdraw their guilty plea, either before or after sentencing. This article serves to explore whether a guilty plea can be withdrawn, and if so, under what circumstances. 

Before Sentencing

The person accused has an unlimited right to withdraw a guilty plea until a sentence is pronounced. O.C.G.A. § 17-7-93 (b). This means a person may withdraw a plea of guilty at any time before a judgment is announced (orally by the court) and then plead not guilty. But, once a judgment is announced, a withdrawal of a plea is within the sound discretion of the court, and this discretion will not be disturbed on appeal unless there is a manifest abuse of discretion. 

After Sentencing

Because of the time and care taken by the court to ensure each plea of guilty is entered freely, knowingly, and voluntarily, it is very difficult to withdraw a guilty plea after a sentence is pronounced. There are, however, a few limited circumstances in which a guilty plea may be withdrawn after the sentence is announced. 

The first is within the context of a negotiated plea. A negotiated plea is one where the prosecutor and defense have come to an agreement on the charge plead to and the terms of punishment to that charge. If a person enters a negotiated plea and the judge, in their discretion, sentences the person to anything different than the terms agreed upon (for better or for worse), the person has the right to withdraw their plea. The opposite is true in a non-negotiated plea, where the person pleads guilty to the offense but is asking the judge for punishment different from what the State is asking for. In a non-negotiated plea the defendant is stuck with whatever sentence the judge imposes. 

After a sentence is imposed, a court may allow the withdrawal of a guilty plea only to correct a “manifest injustice.” Examples of manifest injustice include, but are not limited to, the person being misled about the terms of the sentence, the person being threatened or forced by another to enter a plea, the person not being competent to enter a plea, newly discovered evidence if: (1) the evidence has come to his knowledge since the trial; (2) that it was not owing to the want of due diligence that he did not acquire it sooner; (3) that it is so material that it would probably produce a different verdict; (4) that it is not cumulative only; (5) that the affidavit of the witness should be procured or its absence accounted for; and (6) that a new trial will not be granted if the only effect of the evidence will be to impeach the credit of a witness, or any other circumstance indicated the plea was not entered freely, knowingly, or voluntarily.

A motion to withdraw a guilty plea must be filed within the same term of court in which judgment of conviction was entered. After the term of court expires (about every three months), the trial court’s jurisdiction ends and the defendant’s only remedy is to file a petition for writ of habeas corpus. The terms of court can be found within O.C.G.A. § 15-6-3. 

If a motion to withdraw a guilty plea is timely filed the court may, but is not required to (unless there are issues of fact to be decided), hold a hearing to determine whether the guilty plea should be withdrawn. When a defendant challenges the validity of his guilty plea, the State bears the burden of showing the plea was entered voluntarily and intelligently and that defendant had an understanding of the nature of the charges and the consequences of the plea. 

Contact Us

If you or someone you know has been arrested, contact the law firm of W. Scott Smith at 404.581.0999 for a free case evaluation. You’ll a local Atlanta attorney ready to aggressively fight on your behalf. 

Georgia Criminal Law – Possession of Firearm by Convicted Felon

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A felony conviction has serious consequences. It remains on your criminal record permanently, making jobs and housing extremely difficult to obtain. Aside from incarceration, probation, fines, counseling, and other conditions the sentencing judge may impose, a felony conviction also strips away certain constitutional rights. One of these rights is the right to possess a firearm. In enacting the below statute prohibiting the possession of a firearm by a convicted felon, the General Assembly has sought to keep guns out of the hands of those individuals who by their prior conduct have demonstrated they may not possess a firearm without being a threat to society. This article will explain the three key components of the criminal offense, the punishment, and defenses.

The Offense

It is illegal for any person who has been convicted of a felony to possess a firearm. O.C.G.A. § 16-11-131.

Felony convictions include: any person who is on felony first offender probation, felony conditional discharge probation, or has been convicted of a felony in Georgia or any other state (also includes U.S. territories and courts of foreign nations).

A “firearm,” includes any handgun, rifle, shotgun, or other weapon which will or can be converted to expel a projectile by the action of an explosive or electrical charge. Therefore, toys or non-functioning replicas do not qualify as weapons. However, it is important to note that even disassembled firearms or even projectiles by themselves constitute “firearms” under the statute.

To prove possession, the prosecution must establish has two requirements, a culpable mental state and the act of possessing a firearm. First, the prosecution must establish the person knowingly possessed  a firearm. Knowledge can be proven through direct evidence (person’s statement admitting possession) or through circumstantial evidence (firearm found on person’s bed side table and nobody else had access to the house). Possession can be further broken down into two categories, actual and constructive possession. Actual possession is what it sounds like. If you have a firearm in your hand (or holster, or in your waistband), you are in actual possession of a firearm. Constructive possession, however, is a situation where you have control or dominion over property without being in actual possession of it. For example, imagine you are seated in the front passenger seat of a vehicle along with the driver. The vehicle is pulled over, searched by police, and illegal drugs are found in the center console. Although neither you nor the driver was in actual possession of the drugs, you are both arguably in constructive possession of the drugs because of your mutual ability to access and control of the drugs.

Punishment

A person convicted of possession of a firearm by a convicted felon shall be sentenced to no less than one year and no more than ten years. If this is a second or subsequent conviction, the person shall be sentenced to prison for no less than five and no more than ten years. If the underlying felony was a “forcible felony” the person shall be sentenced to five years imprisonment. A forcible felony is defined as, “any felony involving the use or threat of physical force or violence against any person . . .”

Defenses

There are several defenses available to a person charged with this offense. One is to challenge the underlying conviction. If the conviction is not a felony or was a felony but was discharged under the First Offender Act or conditional discharge sentence, then there is no underlying felony. This offense also does not apply to those who have been convicted but had their convictions pardoned by the state.

The next available defense is to challenge the required mental state; that the person was “knowingly” in possession of a firearm. You cannot be in possession of something that you have no knowledge of.

The defense may also challenge whether the person was in constructive possession. In Harvey v. State, the court found insufficient evidence the defendant was in constructive possession of a firearm (by a convicted felon) even though defendant’s name appeared on documents in closet of apartment where firearm was found; the gun was found on the floor next to an unidentified individual, defendant’s name was not on the lease, and defendant had no belongings inside the apartment. 344 Ga.App. 7 (2017).

Contact Us

If you or someone you know has been arrested, contact the law firm of W. Scott Smith at 404.581.0999 today for a free case evaluation. You’ll find a local Atlanta attorney ready to aggressively fight on your behalf. You can also find out more detailed information about Atlanta laws here.

Drug Trafficking in Georgia

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by Mary Agramonte

         The war on drugs is alive and well in the Georgia criminal justice system. You may be surprised the amounts of each drug that Georgia law considers to be Drug Trafficking. While selling drugs of any kind is against the law and considered a felony, there is a threshold for each drug that will bump the case into drug trafficking. Drug trafficking has significantly harsher penalties than a simple Possession charge or even Possession with Intent to Distribute. Drug trafficking also can make obtaining a bond more difficult at the onset of the case because only a Superior Court Judge can grant bond in these situations. This can be an issue since the first Judge people typically see after arrest is a Magistrate Judge at First Appearance, and Magistrate Judges do not have authority to grant a bond in Drug Trafficking cases in Georgia. In some courts, Magistrate Judges “sit in designation” and can in fact handle bond hearings for trafficking charges. If this is not the case, attorneys must request a hearing by a Superior Court Judge in order to request a bond.

What is considered drug trafficking?

Simply possessing the following amounts will be considered Drug Trafficking under Georgia law, even if there is no evidence of selling or delivering it.

Methamphetamine: 28 grams or more

Heroin: 4 grams or more

Cocaine: 28 grams or more

Marijuana: 10 pounds

How much time am I facing if I am charged with Drug Trafficking?

The short answer is it depends. Each drug and amount has a different mandatory minimum sentence. For example, if you have anywhere between 28 grams and 200 grams of cocaine, Georgia law requires a sentence with a minimum 10 years and $200,000 fine. Those numbers go up with every amount over 200 grams.

If you are charged with trafficking marijuana in Georgia, and the amount seized was somewhere between 10 pounds and 2,000 pounds, it is a mandatory minimum sentence of five years and a $100,000 fine.  Similarly, these numbers will also go up for every amount over 2,000 pounds.

See O.C.G.A. § 16-13-31 for all mandatory minimum sentencing according to type of drug and amount seized.

There are defenses to Drug Trafficking in Georgia

Drug trafficking cases typically implicate the Fourth Amendment more than any other type of case. Each of us has a Constitutional right to be free from unreasonable search and seizures. Each case is different and must be carefully analyzed in terms of whether the police officers acted lawfully in the search and seizure of the drugs. For example, if the officers had no right to enter your trunk or your safe in the closet, the drugs and case can be thrown out. Likewise, if the search warrant is not valid, or they did not get a warrant, this is another defense to getting the drugs suppressed or excluded.

Drug trafficking in Georgia carries significant sentences, and the legal motions must be filed very early on in the case in order to preserve the issue and allow us to argue the suppression of the drugs. If you or a loved one has been arrested and charged with Drug Trafficking in Georgia, reach out today for a FREE CONSULTATION with the experienced lawyers of W. Scott Smith by calling 404-581-0999.

Probation Revocation and Parole

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Can a judge revoke my probation when I have allegedly violated probation after being sentenced but I have not yet started my probation?  Can a judge revoke my probation where it goes non-report or suspended upon completion of doing an act (classes, drug screens or evaluation).

The question requires some explanation as to situations as to where this scenario may rear its ugly head.  Defendant is sentenced in one county to a sentence of 10 years to serve 2, balanced probated.  While client is in prison or on parole he commits a new crime; ie he gets charged with possession of drugs in prison.  Even though he has not started probation as he is under the department of corrections supervision he can still be revoked on the county level by the judge.  Here are a couple of additional scenarios where the judge has the ability to revoke probation even though you are not technically on probation:

Judge sentences you in Cobb County to probation to run Consecutive to your sentence in Paulding County.  You are currently serving time in Paulding County and have not yet started serving your probation in Cobb.  Nonetheless, you can be revoked in Paulding and Cobb for committing a new crime.

Similarly, where a judge suspends a sentence.  For example you get 5 year sentence suspended upon completion of an alcohol evaluation.  You violate your probation shortly after being placed on the suspended sentence – in this scenario you can be revoked for the five years less any time that has elapsed since your sentence started even if you have already completed the evaluation – where the court has not signed an order allowing suspension to commence.

OCGA 17-10-1 (a) provides: that the trial court has the power and authority to suspend or probate all or any part of the entire sentence under such rules and regulations as the judge deems proper, including the authority to revoke the  [*630]  suspension or probation when the defendant has violated any of the rules and regulations prescribed by the court, even before the probationary period has beg

un.

Here are the reasons the court of appeals found persuasive on why  you can still be revoked even though you are not technically on reporting probation:

While probation may be considered a mild form of ambulatory punishment imposing meaningful restraints, its true nature is an act of judicial grace. The Legislature has granted to the judiciary discretionary power to grant probation as a means of testing a convicted defendant’s integrity and future good behavior. Unlike parole, granted by an administrative agency, probation is granted by the court when the sentencing judge deems the protection of society does not demand immediate incarceration. In cases where a convicted defendant’s “future good behavior” has already been compromised by the commission of another criminal act even before the formal probationary period begins, a trial court should not be required to allow such  defendant to serve a previously imposed probated sentence when the court deems the protection of society demands revocation.

by Scott Smith

 

Forgery Laws in Georgia

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by Ryan Walsh

There are four degrees to the offense of Forgery in the State of Georgia.

Forgery in the first and second degree involves the making, possession or alteration of a writing other than a check in a fake name or in a manner that alleges the document was made by another person at another time without the authority of that other person. It is forgery in the first degree if that writing is used, presented , or delivered; and forgery in the second degree if it is never used, presented or delivered.

To be found guilty of forgery in the first or second degree you have to have knowledge that the writing is forged and that you have made, possessed or altered the document with the intent to defraud another party.

Forgery in the third and fourth degrees involve the same elements of forgery discussed above but the writing involved is a check.  If the check is for $1,500 or more or you have ten or more checks in your possession then you will be charged with forgery in the third degree. If the check is for less than $1,500 or you have less than ten checks in your possession then you will be charged with forgery in the fourth degree.

Forgery in the first through third degrees is a felony offense in the State of Georgia. Forgery in the fourth degree is a misdemeanor offense.

If you’ve been contacted by a law enforcement official about a potential issue at a bank it is important that you exercise your right to remain silent and call a lawyer immediately to discuss your case, your options, and potential outcomes.

Being convicted of a forgery charge can impact your ability to gain future employment or obtain professional certifications in the State of Georgia.

Our office of Georgia criminal defense attorneys have experience in defending forgery and fraud crimes. Call us today at 404-581-0999 for a free consultation.

Georgia’s First Offender Act

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by Casey Cleaver

What is it?

Under Georgia Code § 42-8-60, the First Offender Act is a sentencing option which allows a person with no prior felony convictions to dispose of their criminal case without a conviction. The law can be paraphrased as follows:

Where a defendant has not been previously convicted of a felony, the court may, upon a verdict or plea of guilty or nolo contendere, and before adjudication of guilt, without entering a judgment of guilty and with the consent of the defendant, defer future proceedings and place the defendant on probation or sentence the defendant to a term of confinement.

O.C.G.A. § 42-8-60(a). Essentially, this means that if a guilty verdict or plea of guilty or nolo contendere is entered against a first-time offender, the State will delay entering a judgment and place the first-time offender on probation or in confinement (or a hybrid of both). The First Offender Act is not a substitute for punishment, but rather an alternative to a conviction.

Although the first-time offender is “sentenced” to probation or confinement, if the person successfully completes their sentence (along with any accompanying terms, fines, and/or programs) then the case is discharged by the court without a conviction and disappears from their criminal history for most employment purposes.

However, if a person fails to complete all the applicable terms of their sentence or commits a new crime, the judge can revoke that person’s First Offender status, and they will be automatically convicted because of the previously entered guilty verdict or plea.  Additionally, the judge could re-sentence you.[1]

Retroactive Application

Initially, a first-time offender could only receive First Offender treatment at the time of sentencing. This limitation ignored a large population of individuals who were eligible for First Offender treatment in the past, but, for various reasons, were not sentenced under the Act; the Act also did not originally include those who were not represented by an attorney and who were not informed of the First Offender sentencing option by the court at their sentencing.

In 2015, the Georgia legislature passed reform allowing for the retroactive application of First Offender sentencing. The law was further clarified in 2017 to make the retroactive provisions applicable to any case sentenced on or after March 18, 1968. The law governing retroactive application of the First Offender Act can be paraphrased as follows:

An individual who qualified for sentencing pursuant to this article but who was not informed of his or her eligibility for first offender treatment or an individual who was sentenced between March 18, 1968, and October 31, 1982, to a period of incarceration not exceeding one year but who would otherwise have qualified for sentencing pursuant to this article may, with the consent of the prosecuting attorney, petition the court in which he or she was convicted for exoneration of guilt and discharge pursuant to this article.

O.C.G.A. § 42-8-66(a) (emphasis added). The process for retroactively applying First Offender status is relatively simple and can be broken down into three steps. The first step is to determine whether the individual is eligible to receive First Offender status retroactively. To be eligible, the person must have been able to receive First Offender treatment at the time he was originally sentenced. There are some offenses under Georgia that disqualify First Offender treatment (such as certain violent felony offenses and sex offenses listed in O.C.G.A. § 17-10-6.1). Most offenses, however, qualify for First Offender treatment so long as the person does not have a prior felony conviction and has not previously been sentenced under the First Offender Act.

If the individual was sentenced between March 18, 1968, and October 31, 1982, to a period of incarceration not exceeding one year then the individual is not required to have been unaware they qualified before they were sentenced. Conversely, to obtain retroactive First Offender treatment for sentences imposed after October, 31 1982, the person must have been unaware that he qualified before he was sentenced. For instance, if an individual requested First Offender at the time of sentencing but was denied First Offender treatment by the judge, he would most likely not be eligible to receive First Offender treatment retroactively.

The second step in the process is to file a petition in the court where the person was convicted. A petition will request that the court hold an evidentiary hearing to determine whether First Offender treatment should be retroactively granted. In order to file a petition, the prosecuting attorney that handled the original case must consent to the filing of the petition.

Lastly, the court will hold a hearing to determine whether to grant the petition. At the hearing, the judge will consider evidence introduced by the petitioner, evidence introduced by the prosecutor, and other relevant evidence. After all the evidence has been presented:

[t]he court may issue an order retroactively granting first offender treatment and discharge the defendant pursuant to this article if the court finds by a preponderance of the evidence[2] that the defendant was eligible for sentencing under the terms of this article at the time he or she was originally sentenced or that he or she qualifies for sentencing under paragraph (2) of subsection (a) of this Code section and the ends of justice and the welfare of society are served by granting such petition.

O.C.G.A. § 42-8-66(d) (emphasis added). Typically, petitioners have character witnesses testify at the hearing to demonstrate to the judge the petitioner is an upstanding member of society. The judge also considers whether the individual has been arrested or convicted of any offenses since the time of their first conviction. Subsequent arrests or convictions are disfavored by the judge and are likely to decrease the probability the petition will be granted.

If the petition is granted, “[t]he court shall send a copy of any order issued pursuant to this Code section to the petitioner, the prosecuting attorney, the Georgia Crime Information Center, and the Department of Driver Services. The Georgia Crime Information Center and the Department of Driver Services shall modify their records accordingly.” Once granted, this procedure allows for the prior conviction to be retroactively discharged without an adjudication of guilt and sealed from a person’s criminal history for most employment purposes.[3]

Every case is different. If you or someone you know may benefit from this type of sentencing modification, contact our office today. We have extensive experience in this process and have successfully handled cases of this nature. We will be able to assist you in investigating your eligibility, navigating the complicated legal process, and fighting for the Georgia First Offender Act to be retroactively applied to your conviction.

 

[1] For example, if you were sentenced to serve three years on probation under the First Offender Act, and you successfully completed two years and 364 days of probation but committed a new crime on the last day of your probation, the judge could re-sentence you to three years probation.

[2] Preponderance of the evidence simply means, ‘more likely than not.’ (Mathematically similar to 51%)

[3] Keep in mind lawyers, law enforcement, judges, police, and certain third party vendors and employers will be able to see the charge. Furthermore, although the law clearly prohibits employers from using a discharge under the First Offenders Act to disqualify a person for employment (under O.C.G.A. § 42-8-63.1), Georgia is an employment-at-will state, so employers may choose not to hire or appoint any person at any time for any reason, or no reason at all, subject, of course, to constitutional requirements.  O.C.G.A. § 42-8-63.