Georgia’s General Assembly has always sought out methods to reintegrate offenders into society. In the last two years, several laws about first offenders were performed. In 2015, a law was enacted mandating that those accused of a crime must be told about their first-time offender eligibility both by their attorneys or by the court (OCGA §42-8-61). Moreover, people who would have been qualified at the time of their sentencing but were not aware of their ability may be retroactively sentenced as prime offenders (OCGA §42-8-66). In 2016, judges were granted the right to restrict first offender records at the time of sentencing instead of waiting until the sentence is complete and to seal court and jail records for successful first offenders (OCGA §42-8-62.1).
Georgia’s First Offenders Act was initially performed in 1968. It is identified as Georgia’s “second chance law” because it gives first time criminal offenders a chance to learn from their errors and move on with their lives without criminal conviction records hurting their lives and careers.
The First Offenders Act concedes first offenders to appeal guilty or nolo contendere (no contest) without punishment. OCGA §42-8-60(a) provides:
When a defendant has not been earlier convicted of a felony, the court may, upon a guilty verdict or plea of guilty or nolo contendere and before an adjudication of guilt, without opening a judgment of guilt and with the approval of the defendant, defer further proceedings and:
1. Place the defendant on probation, or
2. Sentence the defendant to a term and condition of imprisonment.
The clerk of the court shall forward the record of the first offender sentence to the Georgia Crime Information Center (GCIC) after the offender is placed on probation or confinement. At the event of sentencing, the offender may seek to limit public admittance to his or her sentencing information, and the court may restrain dissemination of the offender’s records to the public. In giving the order to restrict criminal records, the court shall consider the public’s interest in the concern issue and the abuse of the offender’s privacy.
What is and what is not – Georgia First Offender Act
First Offender Act does not pledge any jail time.
Jail time or confinement is one of the penalties that a judge can impose on the first offender. The offender can be put behind bars for a certain period. Both jail time and punishment can be imposed. Additional terms such as restitution, pay of fine, attending anger management courses, offering community services, and other activities that instill trust and accountability can be expected.
First Offender Treatment is not automatic.
It cannot be demanded just because it is the offender’s first breach of the law. It is optional to the judge. It is nonetheless the responsibility of the offender to inform his purpose to the judge and request a First Offender treatment. The judge will be controlled by several factors such as the nature of the crime, the events of the incident leading to the crime, sincere repentance of the offender, the willingness of the offender to oblige with conditions that can be required, and the readiness of the offender to reform for the better.
The offender is convicted but avoids conviction.
Although there is a sentence or guilty or nolo contendere plea, the court suspends any further proceedings and does not enter any judgment. Instead, the court orders the offender on probation or confinement. There is no adjudication of guilt. The first offender has not deemed a convicted felon. During probation and detention, the GCIC record contains “First Offender Act” remarks. The first offender’s exoneration of crime and discharge shall not affect any of his civil rights and liberties. Thus, the offender has the power to vote and bear arms because he has no criminal conviction on record.
Probation under First Offenders Act is not ordinary probation.
Violation of the probation required under the First Offender Act can result in a conviction and possible service of the crimes’ supreme penalties. This is not alike as the violation of regular probation which can only lead to imprisoning up to whatever the original sentence was.
A criminal record is not eradicated.
As mentioned above, during the setting of probation and/or jail sentence, the “First Offender Act” explanation is in the case record. Case records of the actions remain and are open to the public. The offender can appeal or ask the court that the records be “sealed” and made non-available to the public upon successful completion of the probation or incarceration and upon recording of the Order of Release.
First Offenders can be disqualified from some employment.
Although the inventive intent of the law is to give second chances to offenders by checking derogatory record from showing up in GCIC, the law, because of public policy, allows employers engaged in children, elderly, and people with mental incapacity to discriminate applicants based on criminal record history.
Who does not qualify for Georgia’s First Offender Act?
The court shall not sentence a respondent under first offender act when he has been found guilty of or opened a plea of guilt or a plea of nolo contendere for:
1. Serious violent felony;
2. Sexual offense defined in OCGA 17-10-6.2;
3. Trafficking of individuals for labor or sexual servitude;
4. Neglecting disabled adults and older persons;
5. Exploitation and intimidation of handicapped adults and elder person;
6. Sexual exploitation of minor;
7. Electronically furnishing immoral materials to a minor;
8. Computer pornography also child exploitation;
9. Serious offenses against law execution officers; and
10. Driving below the Influence (DUI).
It is the obligation of the attorney representing the offender to inform his client about his or her qualification for sentencing as a first offender.
Prosecutors usually require the first offender to state on the record that he or she has not been condemned of a felony in the past and that he or she has never shown under first offender program. If the defendant is not stewarded by a lawyer, the court shall inquire the defendant’s case and eligibility to enter plea agreeable to the terms of First Offender Act. The court must make sure that the offender is able and made aware of the consequences of a first offender appeal.
Procedures in Sealing Past Criminal Records of First Offenders
If the offender completed his probation/confinement, but his criminal record is still showing up, the offender must go to the clerk of the court where he has been sentenced and request that the “Order of Discharge” be entered in the criminal history kept by GCIC. If there is no “Order of Discharge” on file, the offender must go back and request the probation/prison officer to make one and send it to the appropriate court for proper recording.
An individual who has been exonerated of guilt and discharged in the past may petition the court that granted such discharge for an order to retroactively seal and make unavailable to the public all of the offender’s criminal history record information in the custody of the clerk of court. Notice of such petition shall be given to the clerk of court and the prosecuting attorney.
The court shall retain a hearing on the petition. The court may consider any relevant evidence (1) proving the eligibility of the petitioner when sentenced and (2) determining that the ends of justice and welfare of the society are better served with the granting of the petition. Former probation/prison officer may determine that defendant followed all rules in the program and did not cause any trouble while in the system. Family members, friends, religious community leaders, employers, and co-workers may prove that petitioner has been productive, reformed, and law-abiding.
Georgia’s First Offenders Act was initially performed in 1968.