What is First offender and can I use it?
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.
