In the Supreme Court of Georgia

Decided: May 29, 2024

S23G1037. HOWARD v. THE STATE.

 PETERSON, Presiding Justice.

Isaac Taqai Howard filed a direct appeal seeking review of an 

order revoking his first-offender status. The Court of Appeals 

applied its own longstanding precedent to dismiss Howard’s appeal 

for lack of jurisdiction because he failed to file an application for 

discretionary appeal. We granted certiorari to determine whether 

Howard had the right to a direct appeal under OCGA § 5-6-34 (a) or 

was instead required to file a discretionary application under OCGA 

§ 5-6-35 (a). We conclude that the entry of an adjudication of guilt 

and revocation of a defendant’s first-offender status is directly 

appealable. Therefore, we reverse the Court of Appeals’s judgment.

On March 26, 2021, Howard entered two negotiated pleas. 

Howard and the State agreed to consolidate these cases for purposes 
2

of trial and tender them under Georgia’s First Offender Act. The 

trial court agreed and sentenced Howard as a first offender to two 

concurrent fifteen-year sentences, with the first eighteen months in 

confinement and the balance served on probation. Howard received 

credit for time served, and he was released from confinement on the 

date of the plea hearing. 

In November of 2022, the State filed two “Petition[s] for the 

Adjudication of Guilt and Imposition of Sentence” which alleged that 

Howard violated the conditions of his probation. After a “Probation 

Revocation Hearing” on December 14, 2022, the trial court entered 

an adjudication of guilt on both petitions and resentenced Howard 

on both petitions as a felon to fifteen years, with the first five years 

in confinement and the balance served on probation. Howard filed a 

notice of appeal as to both cases, which the Court of Appeals 

dismissed in an unpublished order on the ground that Howard’s 

appeal was an appeal from an “order[] revoking probation” under 

OCGA § 5-6-35 (a) (5) such that Howard’s failure to file an 

application for discretionary appeal deprived it of jurisdiction.
3

In doing so, the Court of Appeals faithfully applied its decision 

from nearly 40 years ago in Dean v. State, 177 Ga. App. 123 (338 

SE2d 711) (1985). The Dean court held over a dissent that the 

revocation of a defendant’s first-offender probation was controlled 

by the discretionary appeal procedure in OCGA § 5-6-35. The court 

offered three reasons for this conclusion: (1) OCGA § 5-6-35 (a)

required a discretionary application for appeals from orders 

revoking probation, “making no distinction between ‘first-offender’ 

probation . . . and probation otherwise provided for in criminal 

cases”; (2) the “purpose of the discretionary appeal statute is in part

to reduce the tremendous case load of the state’s appellate courts”;

and (3) the First Offender Act provided an avenue of direct appeal 

“upon the imposition of first-offender status[.]” Dean, 177 Ga. App. 

at 124 (1) (citing OCGA § 5-6-35 (a) (5)). Judge Beasley dissented in 

part and would have held that the entry of an adjudication of guilt 

and resentencing of a first offender upon the revocation of firstoffender status is directly appealable, reasoning that “an appeal 

from a termination of probation under the First Offender Act . . . . is 
4

from more than a mere ‘order revoking probation’” and is “actually 

an appeal also from the judgment of guilt itself as well as from the 

new sentence.” Id. at 127-128 (Beasley, J., dissenting in part).

Howard then filed a petition for a writ of certiorari, which we 

granted. Howard argues on appeal that the trial court’s revocation 

of his first-offender status, entry of an adjudication of guilt, and 

resentencing constitute a final judgment that is directly appealable. 

We agree with Howard and Judge Beasley.

1. Different procedures govern the requirements for direct 

appeals and discretionary appeals.

“Two code sections primarily govern the method for pursuing 

appeals to this Court and the Court of Appeals” — OCGA § 5-6-34 

and OCGA § 5-6-35. Grogan v. City of Dawsonville, 305 Ga. 79, 82 

(2) (823 SE2d 763) (2019). Under OCGA § 5-6-34, subsection (a) 

identifies trial court decisions that may be appealed immediately, 

and subsection (b) provides an interlocutory appeal procedure by 

which a party can obtain permission from the trial court to seek 

appellate review of a decision that would otherwise not be 
5

immediately reviewable. See OCGA § 5-6-34 (a), (b). If a trial court’s

decision is immediately appealable under OCGA § 5-6-34 (a), a 

would-be appellant must then determine whether he or she is

entitled to a direct appeal by notice of appeal or must file an 

application for discretionary review.1

OCGA § 5-6-35 “governs the process by which a party must file 

an application for discretionary review for certain orders that are 

immediately appealable.” Grogan, 305 Ga. at 82 (2). If the 

underlying subject matter of the appeal is one of the categories of 

cases listed in OCGA § 5-6-35 (a), the appeal “shall be by application 

in the nature of a petition enumerating the errors to be urged on 

appeal and stating why the appellate court has jurisdiction[,]”

OCGA § 5-6-35 (b), “even when the party is appealing a judgment or 

order that is procedurally subject to [immediate] appeal under 

1 We have often used the phrase “direct appeal” confusingly to “refer to 

two different concepts: (1) an immediate appeal [under OCGA § 5-6-34 (a)] for 

which permission is not required to be obtained through the interlocutory 

review process; and (2) an appeal that is entitled to come by a notice of appeal, 

not an application for discretionary review.” Grogan, 305 Ga. at 82 (2) n.4. But 

“[t]hese are not the same.” Id. We use “direct appeal” here to mean only the 

latter.
6

OCGA § 5-6-34 (a).” Grogan, 305 Ga. at 82 (2) (citation and 

punctuation omitted).

Defendants in criminal cases may take immediate appeals 

from all final judgments, which OCGA § 5-6-34 (a) (1) defines as 

“where the case is no longer pending in the court below,” and may 

do so by simply filing a notice of appeal (i.e., a direct appeal) unless 

the case is one of the specified categories of cases in OCGA § 5-6-35 

(a) that must come by discretionary application. See Seals v. State, 

311 Ga. 739, 742-743 (2) (a) (860 SE2d 419) (2021) (a case is “no 

longer pending” when the trial court has resolved every count and 

left no issue remaining to be resolved), disapproved in part on other 

grounds by Gonzales v. State, 315 Ga. 661, 665 (1) (b) n.7 (884 SE2d 

339) (2023). For the categories of cases listed in OCGA § 5-6-35 (a), 

a defendant is not entitled to a direct appeal but instead must file a 

discretionary application to seek appellate review. See OCGA § 5-6-

35 (b)-(f) (establishing discretionary application procedure). In 

particular, OCGA § 5-6-35 requires a discretionary application for 

“[a]ppeals from orders revoking probation[.]” OCGA § 5-6-35 (a) (5). 
7

Whether an appeal from an adjudication of guilt and resentence 

upon revocation of first-offender status is a final judgment, and 

whether it is covered by OCGA § 5-6-35 (a) (5), require careful 

consideration of the First Offender Act.

2. The trial court’s entry of an adjudication of guilt and 

resentencing upon the revocation of a first-offender status constitutes 

a final judgment that is not covered by OCGA § 5-6-35 (a) (5).

Under Georgia’s First Offender Act, “a first-time felony 

offender who enters a guilty plea may be sentenced to probation or 

confinement ‘before an adjudication of guilt’ and ‘without entering a 

judgment of guilt.’” Manner v. State, 302 Ga. 877, 888 (III) (808 SE2d 

681) (2017) (citing OCGA § 42-8-60 (a)2). The First Offender Act is a 

unique act by which the legislature extends a form of grace to 

individuals who commit certain types of crimes. The Act “protect[s] 

the first offender from the stigma of having a criminal record until 

2 OCGA § 42-8-60 (a) states:

When a defendant has not been previously 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 entering a 

judgment of guilt and with the consent of the defendant, defer 

further proceedings and: (1) [p]lace the defendant on probation; or 

(2) [s]entence the defendant to a term of confinement.
8

an adjudication of guilt has been entered with regard to the crime 

for which the defendant was given first offender treatment.” Davis 

v. State, 269 Ga. 276, 277 (2) (496 SE2d 699) (1998). Because of its 

uniqueness, Georgia courts have sometimes used language more 

consistent with typical criminal processes in describing the First 

Offender Act and the status of first-offenders, causing a fair amount 

of confusion. See Benton v. State, 314 Ga. 498, 503 (2) n.7 (877 SE2d 

603) (2022) (noting that some of the confusion stems from the Act’s 

language itself).

a. The entry of an adjudication of guilt and resentencing upon 

the revocation of first-offender status constitutes a final judgment.

While plainly amounting to something like a conviction in some 

senses (most notably, the offender may be sentenced to prison), the 

imposition of a first-offender sentence “does not immediately 

constitute a ‘conviction’ as that term is defined in Georgia’s Criminal 

Code.”3 Benton, 314 Ga. at 501 (2). Instead, the imposition of a first3 Georgia’s Criminal Code defines “conviction” as “a final judgment of 

conviction entered upon a verdict or finding of guilty of a crime or upon a plea 

of guilty.” OCGA § 16-1-3 (4).
9

offender sentence under OCGA § 42-8-60 (a) “defer[s] further 

proceedings[,]” and the charge remains pending for the duration of 

the first-offender sentence. See Smith v. State, 276 Ga. 263, 265 (2) 

(577 SE2d 548) (2003) (when a defendant is on first-offender 

probation, “there has not been an adjudication of guilt and the 

matter remains pending”).

Any probationary sentence entered under [the First 

Offender] Act is preliminary only, and, if completed 

without violation, permits the offender complete 

rehabilitation without the stigma of a felony conviction. 

If, however, such offender does not take advantage of such 

opportunity for rehabilitation, his [proceeding] which has, 

in effect, been suspended is continued and an adjudication 

of guilt is made and a sentence entered.

State v. Wiley, 233 Ga. 316, 317 (210 SE2d 790) (1974). Because the 

charge remains pending, no final judgment has occurred, and an 

immediate appeal would not be permitted under OCGA § 5-6-34 

without a certificate of immediate review. But OCGA § 42-8-64 

provides an avenue of immediate appeal to a defendant sentenced 

as a first offender.4

4 OCGA § 42-8-64 states that “[a] defendant sentenced pursuant to this 
10

“Upon satisfactory completion of a sentence imposed pursuant 

to [OCGA § 42-8-60 (a)], the defendant is discharged and exonerated 

of guilt.” Manner, 302 Ga. at 888 (III) (emphasis added; citing OCGA 

§ 42-8-60 (e)). But if the defendant violates the terms of first-offender 

probation or is convicted of another crime during the pendency of 

that sentence, the trial court has discretion to revoke the defendant’s

first-offender status and “may enter an adjudication of guilt and 

proceed to sentence the defendant as otherwise provided by law[.]”

OCGA § 42-8-60 (d).5

At that point, if the trial court chooses to enter an adjudication 

of guilt and to resentence the defendant on the counts forming the 

basis of the initial first-offender sentence, this revokes the 

defendant’s first-offender status and resolves every count such that 

article shall have the right to appeal in the same manner and with the same 

scope and same effect as if a judgment of conviction had been entered and 

appealed from.”

5 The violation of a first offender’s conditions of probation does not 

automatically revoke the first-offender status. “Instead, [the violation] is a 

condition which, if met, gives the court discretion to enter an adjudication of 

guilt.” Benton, 314 Ga. at 502 (2). “If a court exercises its discretion not to enter 

that judgment, the first offender is still eligible for exoneration by operation of 

law under OCGA § 42-8-60 (e) once the listed statutory conditions are met.” Id. 

(emphasis in original).
11

“the case is no longer pending in the court below[.]” OCGA § 5-6-34 

(a). See OCGA § 42-8-60 (d); Benton, 314 Ga. at 501-502 (2).

Therefore, the entry of an adjudication of guilt and sentence 

constitutes a final judgment and triggers the defendant’s right to an 

immediate appeal under OCGA § 5-6-34 (a) (1). See Allen v. State, 

315 Ga. 524, 525 n.1 (883 SE2d 746) (2023) (case “became subject to 

direct appeal” when the trial court entered a conviction and

sentence, resolving all counts of the indictment); Benton, 314 Ga. at 

502 (2) (referring to the trial court’s entry of an adjudication of guilt 

and sentence for violation of first-offender probation as a 

“judgment”); Seals, 311 Ga. at 742 (2) (a) (case is final and 

appealable when the trial court has entered a written judgment that

imposes a sentence on each count).

b. An appeal in this context is not an appeal from an order 

revoking probation and thus does not require a discretionary 

application.

In reliance on the Court of Appeals’s decision in Dean and its

progeny, the State nonetheless argues that Howard was required to 

file a discretionary application because OCGA § 5-6-35 (a) (5) 
12

requires a discretionary application for “[a]ppeals from orders

revoking probation[.]” The Court of Appeals has interpreted that 

provision as “making no distinction between ‘first-offender’

probation (see OCGA § 42-8-60 et seq.) and probation otherwise 

provided for in criminal cases (see OCGA § 42-8-34).” Dean, 177 Ga. 

App. at 124 (1). Put another way, the State argues that an order 

revoking probation and an adjudication of guilt after the violation of

a first-offender sentence are essentially the same and yield the same 

result, so they should be treated the same for purposes of appeal.

But the State’s argument and the Court of Appeals precedent on 

which it relies are unsupported by the text of OCGA § 5-6-34, OCGA 

§ 5-6-35 (a) (5), and OCGA § 42-8-60, and they ignore key differences 

between an adjudication of guilt and an order revoking probation.6

OCGA § 5-6-34 (a) (1) makes clear that “[a]ll final judgments” 

6 Notwithstanding the fact that Dean was decided in 1985, stare decisis 

does not apply to our review of Court of Appeals precedent. See Olevik v. State, 

302 Ga. 228, 244 (2) (c) (iv) (806 SE2d 505) (2017) (“Under the doctrine of stare 

decisis, courts generally stand by their prior decisions[.]” (emphasis added)); 

Rollf v. Carter, 298 Ga. 557, 559 (784 SE2d 341) (2016) (decisions by the Court 

of Appeals are not binding on this Court). The question we decide today is a 

question of first impression for this Court.
13

are entitled to a direct appeal unless the subject matter is one of the 

categories of cases listed in OCGA § 5-6-35. The text of OCGA § 5-6-

35 (a) does not include the entry of an adjudication of guilt and 

sentence upon the revocation of first-offender status as one of the 

categories of cases which requires the filing of a discretionary 

application. See OCGA § 5-6-35 (a). If the legislature had intended 

to include an adjudication of guilt in that provision, it could have 

(and still can), but “we do not have the authority to rewrite statutes, 

so when the text is plain, we must follow it.” McKinney v. State, ___ 

Ga. ___ (899 SE2d 121, 125) (2024) (citation and punctuation 

omitted). Therefore, we reject an interpretation that would add to 

the statute that which the legislature did not include. Moreover, 

OCGA § 5-6-30 directs that the Appellate Practice Act “shall be 

liberally construed so as to bring about a decision on the merits of 

every case appealed and to avoid dismissal of any case or refusal to 

consider any points raised therein, except as may be specifically 

referred to in this article.” See Premier Pediatric Providers, LLC v. 

Kennesaw Pediatrics, P.C., 318 Ga. 350, 359 (3) (898 SE2d 481) 
14

(2024) (“In other words, OCGA § 5-6-30 puts a legislative thumb on 

the scale in favor of reaching the merits.”). Accordingly, we do not 

interpret OCGA § 5-6-35 (a) in a manner that limits the right to 

appeal any more than its text requires.

Further, the text of the First Offender Act does not equate the 

entry of an adjudication of guilt to an order revoking probation.7 See 

OCGA § 42-8-60; cf. OCGA § 42-8-34.1 (setting forth conditions and 

procedures for revoking probated or suspended sentence under 

state-wide probation system); OCGA § 42-8-38 (c) (trial court has 

discretion to revoke, modify, or continue probation under state-wide 

probation system); OCGA § 42-8-102 (f) (setting forth procedure for 

revoking county and municipal probation). Moreover, as Judge 

Beasley argued in dissent in Dean, the fact that an adjudication of 

guilt often has the effect of revoking a first offender’s probation does 

not transform an adjudication of guilt into a probation revocation for 

purposes of appeal. 177 Ga. App. at 128 (Beasley, J., dissenting in 

7 Indeed, the text of OCGA § 42-8-60 does not once mention a “probation 

revocation.” See OCGA § 42-8-60.
15

part). “It is obvious that the General Assembly intended the first 

offender probation to have a different effect than probation in other 

cases.” Wiley, 233 Ga. at 317.

An important difference between orders revoking ordinary 

probation and orders revoking first-offender status is that ordinary 

probation is served after a judgment is entered. That affects what 

can be appealed when it is revoked: “a mere order revoking 

probation proceeds from a sentence based on a judgment entered 

previously and the appeal is only from the order.” Dean, 177 Ga. 

App. at 128 (Beasley, J., dissenting in part). By the time probation 

is revoked in that context, “a defendant has already had the right to 

appeal directly all aspects of the formal adjudication of guilt as well 

as of the sentence which is bottomed on the judgment of guilt.” Id. 

at 127-128 (Beasley, J., dissenting in part) (emphasis added). But 

that is not the case in an adjudication of guilt that follows the 

violation of conditions of first-offender probation, where although 

OCGA § 42-8-64 gives a first-offender the right to a direct appeal, 

there has not yet been an adjudication of guilt.
16

During the pendency of a first-offender sentence, there has 

been no adjudication of guilt or final judgment,8 the first offender is 

not considered “convicted” as that term is used in Georgia’s Criminal 

Code, the “matter remains pending[,]” Smith, 276 Ga. at 265 (2), and 

the first offender has the opportunity — upon the satisfactory 

completion of the first-offender sentence — to be altogether 

exonerated of guilt and stand discharged as a matter of law. See 

OCGA § 42-8-60 (e). So when a first-offender sentence is not 

completed successfully and the trial court enters an adjudication of 

guilt and sentence, this is the first judgment of guilt entered against 

that defendant. See OCGA § 42-8-60 (d). At that point, the defendant 

stands convicted under Georgia’s Criminal Code, and “the new 

sentence is based on a just-arrived at adjudication of guilt” and “may 

actually be more severe than the consented-to [first offender] 

8 Although the trial court enters a judgment granting a defendant first 

offender treatment, this does not constitute a final judgment for purposes of 

direct appeal because the case remains pending until the defendant complies 

with or violates the terms of first-offender probation. Instead, that initial 

judgment is merely “a judgment granting him first offender treatment instead 

of imposing a regular sentence with an adjudication of guilt.” Higdon v. State, 

291 Ga. 821, 824 (2) (a) (733 SE2d 750) (2012).
17

sentence.” Dean, 177 Ga. App. at 128 (Beasley, J., dissenting in 

part). Regardless of the duration of the new sentence imposed, the 

entry of an adjudication of guilt is distinct from an order revoking 

probation, and Georgia law does not treat them the same for the 

purposes of appeal.

c. Claims that the defendant raised or could have raised in 

appealing the initial imposition of the first-offender sentence may 

well be barred in a subsequent appeal from the entry of an 

adjudication of guilt and sentence.

The State argues that the conclusion we have reached today

will give defendants two bites at the direct appeal apple, as 

defendants will be entitled to directly appeal both the initial entry 

of a first-offender sentence (because OCGA § 42-8-64 says they can)

and the entry of an adjudication of guilt and sentence (because it is 

a final judgment under OCGA § 5-6-34). But our holding today is 

required by the statutory text, which we cannot change to achieve a 

“better” policy outcome. What’s more, our holding does not obviously 

have the result the State fears. If a defendant chooses to exercise the 

right to a direct appeal provided by OCGA § 42-8-64 upon the initial 
18

entry of the first-offender sentence, any argument that the 

defendant raises or could have raised in that appeal may well be 

barred in a subsequent appeal if that defendant later chooses also to 

appeal the entry of an adjudication of guilt. See Walker-Madden v. 

State, 301 Ga. 744, 745 (804 SE2d 8) (2017) (“In a second appeal 

after remand for resentencing, a criminal defendant may raise 

issues relating to the new sentencing order but may not raise issues 

that were, or could have been, raised in the first appeal of the case.”).

Accordingly, upon the trial court’s entry of an adjudication of 

guilt, Howard was entitled to a direct appeal under OCGA § 5-6-34 

(a). Therefore, we reverse the Court of Appeals’s judgment and 

remand for further proceedings consistent with this opinion.

Judgment reversed and case remanded. All the Justices concur, 

except, LaGrua, J., who dissents. 
19

LAGRUA, Justice, dissenting.

Because defendants receiving a first-offender sentence do not 

immediately receive convictions, the legislature has permitted them 

to file their direct appeals as if they had received a conviction. See 

OCGA § 42-8-64. Criminal defendants are normally entitled to a 

direct appeal after conviction and must file that appeal within 30 

days. See OCGA §§ 5-6-34, 5-6-38 (a). With the Majority Opinion, 

now some first-offender defendants could also have 30 years — or 

longer — if they decide to avail themselves of their new right to a 

direct appeal should the trial court revoke probation and enter an 

adjudication of guilt late in a sentence. While some claims may be 

barred, the prosecution, defense, and appellate courts will still be 

burdened with potentially ancient cases that already had a full 

opportunity to appeal. They will be placed in the position of dealing 

with failing memories, locating long-gone witnesses, and litigating 

matters that should have been litigated years before.

The Majority Opinion recognizes that this result is not the best 
20

policy outcome, but nonetheless argues that it is required by the 

statutory text. I admit that this is a difficult question, but the grace 

of the legislature does not go that far. Rather, I agree with the Court 

of Appeals’ longstanding precedent in Dean that correctly looked at 

the text of OCGA § 5-6-35 (a) (5) and held that “orders revoking 

probation” includes just that — orders revoking probation. See Dean 

v. State, 177 Ga. App. 123, 124-125 (1) (338 SE2d 711) (1985). The 

fact that some of those revocations might also involve an 

adjudication of guilt under OCGA § 42-8-60 (d) does not remove 

those revocations from the clear text of OCGA § 5-6-35 (a) (5). The 

First Offender Act still calls first-offender probation “probation” 

even though the legislature intended it to have a different effect. See 

OCGA § 42-8-60 (a)-(g) (referencing “probation” fifteen times). 

Therefore, I respectfully dissent.