Understanding Georgia’s First Time Offenders Act (O.C.G.A. Section 42-8-60, et seq.)
What is it?
Georgia’s First Time Offenders Act is a law that allows some first time offenders charged with certain crimes to enter a plea of “guilty” or “nolo contendere” but avoid a conviction. No person can be sentenced under the First Time Offenders Act on more than one occasion.
The Georgia Bureau of Investigation explains it like this:
Per Georgia law (O.C.G.A. § 42-8-60), “upon a verdict or plea of guilty or nolo contendere, but before an adjudication of guilt, the court may, in the case of a defendant who has not been previously convicted of a felony, without entering a judgment of guilt and with the consent of the defendant, defer further proceeding and place the defendant on probation as a first offender.”
If the terms of the first offender sentence are successfully completed, and the probationer discharged, those charges would be sealed on the GCIC database when the discharge is applied to the GCIC criminal history; however, such information may be available through other sources, including court docket books, criminal justice agency websites, or through “third party” vendors. GCIC must receive official notification that the subject has successfully completed the FOA requirements. The record is not automatically sealed based on the passage of the probation sentence.
Georgia law (O.C.G.A. § 42-8-65(b)) requires GCIC to change the first offender sentence to a conviction if, prior to successful discharge, the subject is arrested and convicted of another offense while still on first offender probation or the offender has received prior FOA treatment. Courts may also revoke a first offender sentence, indicate unsatisfactory completion of the first offender sentence or change to an adjudication of guilt.
Georgia law (O.C.G.A. § 42-8-63.1) notes offenses for which a FOA discharge may be used to disqualify a person for employment; thus the information will be disseminated to prospective employers.
How does it work?
If you are sentenced under Georgia’s First Time Offenders Act and you successfully complete all terms of your sentence without committing a new crime, you will not have a conviction, and the charge will be sealed from your official criminal history.
Is it automatic?
No. The judge decides whether to sentence the defendant as a First Time Offender, and the defendant must consent. If the judge denies your request, you cannot appeal the decision.
Am I eligible?
You may be eligible if you:
- Have never been convicted of a felony in any state (O.C.G.A. Section 42-8-60(a);
- Have never been sentenced as a first offender (O.C.G.A. Section 42-8-60(b);
- Are not charged with driving under the influence (DUI);
- Are not charged with aggravated assault, aggravated battery, or obstruction of a law enforcement officer, if such violation results in serious physical harm or injury to such officer, while such officer engaged in his duties (O.C.G.A. Sections 16-5-21, 16-5-24, 16-10-24(b);
- Are not charged with a serious violent felony (O.C.G.A. Section 17-10-6.1);
- Are not charged with a serious sexual offense (O.C.G.A. Section 17-10-6.2);
- Are not charged with any crime related to child pornography;
- Are not charged with any crime related to electronic sexual exploitation of a minor, computer pornography (O.C.G.A. Sections 16-12-100, 16-12-100.1, 16-12-100.2)
If I get First Time Offender treatment, will I have to go to jail?
Possibly. Under the First Time Offenders Act, your sentence may include probation, jail, or a combination of the two. The First Time Offenders Act is not a substitute for punishment. Instead, it is an alternative to a conviction.
What will show up on my criminal record during my sentence?
If the judge decides to sentence you as a First Time Offender, during your sentence your official Georgia Crime Information Center (GCIC) criminal history, also called your “rap sheet,” will say “First Time Offenders Act” as a result of the case.
Is there any reason not to ask to be sentenced under the First Time Offenders Act?
There is a potential risk, or downside, associated with First Time Offenders treatment. If you fail to complete all terms of your sentence or commit a new crime, the judge can revoke your First Time Offender status, and you are convicted automatically. Also, the judge can re-sentence you to serve the maximum amount of time in prison without any credit for any time you may have served on probation. For example, if you were sentenced to serve five years on probation under the First Time Offender Act, and you successfully completed four 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 serve the maximum amount of time in prison (and other maximum punishment, such as a fine, etc.) allowable for the original crime without any credit for the four years and 364 days you had already served on probation.
What happens to my criminal history record after I successfully complete my sentence under the First Time Offenders Act?
The probation officer will ask the judge to issue an Order of Discharge. The judge will issue the Order, and it will be filed in the Clerk’s office. When you receive a copy, be sure to keep it in a safe place. The Clerk will enter the Order of Discharge on your official Georgia criminal history record, and the record of the case will be sealed from your GCIC criminal history record for most, but not all, employers.
Do I need to do anything else?
Yes. Go to any police department or Sheriff’s office in Georgia, and obtain a copy of your GCIC criminal history record to make sure the First Time Offenders case no longer appears on your record. But, remember, law enforcement, judges, prosecutors, and certain employers will always be able to see the charge.
Can an employer refuse to hire me because I was sentenced under the First Time Offenders Act?
Yes. O.C.G.A. Section 42-8-63.1. Although the law clearly prohibits employers from using a discharge under the First Time Offenders Act to disqualify a person for employment, 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. Section 42-8-63.