Georgia’s First Offender Act

What is the Georgia First Offender Act?

The Georgia First Offender Act (FOA), found in O.C.G.A § 42-8-60, is a provision of Georgia law that allows certain individuals to enter a plea of guilty or nolo contendere but avoid a criminal conviction. Under this provision one enters a plea of guilty or nolo contendere and receives a sentence which may include probation, prison time, or a combination of the two. If the individual successfully completes this sentence, including any terms of First Offender Probation, without having their First Offender Status revoked then the conviction with be discharged from their criminal record.

Am I Eligible for First Offender Treatment?

Generally speaking, one will be eligible for First Offender Treatment so long as they have not been previously convicted of a felony and have not pleaded guilty under the First Offender Act in the past. However, certain charges are ineligible for First Offender treatment. These include:

  1. Serious violent felonies as defined in O.C.G.A. § 17-10-6.1.
  2. Sexual offenses as defined in O.C.G.A. § 17-10-6.2
  3. Trafficking of persons for labor or sexual servitude as prohibited under O.C.G.A. § 16-5-46
  4. Exploitation and intimidation of disabled adults or elder persons. Under O.C.G.A. § 16-5-102
  5. Sexual exploitation of a minor under O.C.G.A. § 16-12-100.
  6. Electronically furnishing obscene material to a minor under O.C.G.A. §16-12-100.1.
  7. Computer Pornography and child exploitation under O.C.G.A. § 16-12-100.2
  8. Aggravated assault against a law enforcement officer
  9. Aggravated battery against a law enforcement officer
  10. Obstruction of a law enforcement officer pursuant to O.C.G.A. § 16-10-24(b) if such obstruction results in serious physical harm to that officer
  11. DUI pursuant to O.C.G.A. § 40-6-391

Is the FOA a Get Out of Jail Free Card?

No, the FOA only allows an individual to avoid a conviction, it does not necessarily prevent a sentence that includes time behind bars. If one pleads under the FOA the judge may sentence them to probation, prison, or a combination of the two.

Are there any downsides to pleading under the First Offender Act?

The benefit of pleading under the FOA lies in the fact that successful completion of the terms of one’s sentence will allow them to avoid a conviction on their record. However, the FOA carries a significant risk. Should an individual violate the terms of their FOA probation or if they are convicted of another crime during their sentence then a judge may revoke their First Offender status and enter a conviction then and there. The judge is then permitted to re-sentence the individual to any sentence that would be permitted under the law.

To illustrate, say an individual is charged with burglary in the first degree which carries with it a maximum sentence of twenty years. The individual then pleads guilty under the FOA and receives a sentence of five years on probation. If the individual’s First Offender Status is revoked at any time, even on the very last day, the judge may resentence them for up to twenty years.

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