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Georgia's First Offender Act and Other Alternative Sentencing Options in Georgia

Georgia’s First Offender Act, under O.C.G.A. §42-8-60, Et. Seq., allows a defendant an opportunity to enter into a guilty plea before a Judge without being adjudicated guilty. In other words, a defendant can enter into a guilty plea, serve probation (or jail + probation), and upon successful completion of probation, the defendant will be “exonerated of guilt and shall stand discharged as a matter of law” O.C.G.A. §42-8-60(d).

First offender doesn’t technically mean first-time offender. Defendants can use their First Offender on a misdemeanor or felony. Once it is used, it can never be used again. However, there is a small loophole -- if a defendant has 2 accusations or indictments that occur in a small window of time, sometimes a good defense attorney can get the prosecutor to combine both of the charging documents into a single one, thus allowing the First Offender “umbrella” to cover all of the charges at once. See Higdon v. State, 291 Ga. 821 (2012).

Also, if you have been convicted of a felony, you can not use First Offender. So if you have a misdemeanor conviction, you can still use first offender, but not the other way around.

Other loopholes include the ability to use First Offender even though prior alternative sentencing methods were previously used that resulted in an adjudication without guilt. One such method is a pretrial diversion program possibly offered by each County’s DA's office. Pretrial diversion programs typically offer a complete dismissal of a charge in exchange for completion of a program created by that office (these programs almost always charge an entrance fee). Pretrial Diversion Programs are the best option for a defendant because they result in a complete dismissal of charges.

Similar to Georgia’s First Offender Act is Georgia’s Conditional Discharge Statute under OCGA §16-13-2. The only real difference between the two statutes is the scope in which one can use a conditional discharge – the applicable offense must be drug related and can include minor theft offenses, as long as they are in connection to drugs.

Therefore, if all of these methods are used correctly and the right combination of charges are brought, one can technically be charged on three separate felony incidents (with a possible 4th, see paragraph 2) and still not have a felony conviction on their record!

Hypothetical scenario with a Defendant named Rambo: Rambo is charged with felony criminal damage to property on 1/1/2012. Defendant enters into a pretrial diversion program, successfully completes it, and his charge is dismissed. Not a convicted felon. Rambo is charged with felony possession of methamphetamine on 1/1/2013. Defendant enters into a conditional discharge guilty plea, successfully completes 3 years of probation and is discharged without guilt. Still not a convicted felon. Defendant then is charged with Aggravated Assault on 1/1/2017. Rambo enters a guilty plea and asks to be sentenced under First Offender. Rambo is sentenced to 5 years of probation with one year to serve. Defendant does his time and serves the balance on probation successfully. Rambo is STILL not a convicted felon!

Defendant’s cannot use First Offender on a serious violent felony as defined by OCGA §17-10-6.1; a sexual offense defined by OCGA §17-10-6.2; trafficking of persons as defined by OCGA §16-5-46; neglect or exploitation of certain populations as defined by OCGA §16-5-101 and OCGA §16-5-102; sexual exploitation or furnishing obscene material to a minor as defined by OCGA §§ 16-12-100, 16-12-100.1 and 16-12-100.2; certain crimes that result in injuries to police officers; and Driving Under the Influence.

 If you have any questions about the First Offender Act, the Conditional Discharge Statute, or Pretrial Diversion Programs, do not hesitate to contact me.

Gregory Clement