GA Code § 42-8-60 (2021)
2021 Georgia Code|Title 42 - Penal Institutions|Chapter 8 - Probation|Article 3 - First Offenders|§ 42-8-60. Probation Prior to Adjudication of Guilt; Violation of Probation; Review of Criminal Record by Judge

  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:   Place the defendant on probation; or   Sentence the defendant to a term of confinement.     The court shall not sentence a defendant under the provisions of this article unless the court has reviewed the defendant's criminal record as such is on file with the Georgia Crime Information Center.   When a court imposes a sentence pursuant to this article, it:   Shall state in its sentencing order the prospective effective date of the defendant being exonerated of guilt and discharged as a matter of law, assuming the defendant successfully complies with its sentencing order, provided that such date may not have taken into account the awarding of credit for time served in custody; and   May limit access to certain information as provided in subsection (b) of Code Section 42-8-62.1.     The court may enter an adjudication of guilt and proceed to sentence the defendant as otherwise provided by law when the:   Defendant violates the terms of his or her first offender probation;   Defendant is convicted for another crime during the period of his or her first offender sentence; or   Court determines that the defendant is or was not eligible for first offender sentencing under this article.     A defendant sentenced pursuant to this article shall be exonerated of guilt and shall stand discharged as a matter of law as soon as the defendant:   Completes the terms of his or her probation, which shall include the expiration of the sentence by virtue of the time frame of the sentence passing, provided that such sentence has not otherwise been tolled or suspended;   Is released by the court under Code Section 42-8-37, 42-8-103, or 42-8-103.1 prior to the termination of the period of his or her probation; or   Is released from confinement and parole, provided that the defendant is not serving a split sentence.       If the defendant is serving a first offender probated sentence, under active probation supervision or without supervision, within 30 days of such defendant completing active probation supervision, it shall be the duty of the Department of Community Supervision to notify, in writing, the clerk of court for the jurisdiction of the court which imposed the first offender sentence of such completion.   If the defendant is serving a first offender probated sentence, under active probation supervision or without supervision, within 30 days of such defendant completing the term of probation or being released by the court prior to the termination of the period of probation, it shall be the duty of the Department of Community Supervision or entity or governing authority that is providing probation supervision services pursuant to Article 6 of this chapter, as applicable, to notify, in writing, the clerk of court for the jurisdiction of the court which imposed the first offender sentence of such completion or release.   If the defendant is serving a first offender probated sentence pursuant to Article 6 of this chapter, under active probation supervision or without supervision, within 30 days of such defendant completing the term of probation or being released by the court prior to the termination of the period of probation, it shall be the duty of the entity or governing authority that is providing probation supervision services pursuant to Article 6 of this chapter to notify, in writing, the clerk of court for the jurisdiction of the court which imposed the first offender sentence of such completion or release.   If the defendant is not serving a first offender split sentence but is under parole supervision, within 30 days of such defendant completing the term of parole, it shall be the duty of the Department of Community Supervision to notify, in writing, the clerk of court for the jurisdiction of the court which imposed the first offender sentence of such completion.   If the defendant was sentenced only to imprisonment as a first offender and not granted parole, within 30 days of such defendant being released from confinement, it shall be the duty of the Department of Corrections to notify, in writing, the clerk of court for the jurisdiction of the court which imposed the first offender sentence of such release.     If the Department of Community Supervision fails to notify the clerk of court as provided in paragraph (2) or (4) of subsection (f) of this Code section, the entity or governing authority that is providing probation supervision services pursuant to Article 6 of this chapter fails to notify the clerk of court as provided in paragraph (2) or (3) of subsection (f) of this Code section, the Department of Corrections fails to notify the clerk of court as provided in paragraph (5) of subsection (f) of this Code section, or the state does not seek to have a first offender adjudicated guilty during the term of the first offender's sentence and the first offender's sentence has not otherwise been tolled or suspended, then the defendant shall be exonerated of guilt and shall stand discharged as a matter of law.     When the clerk of court receives for filing an order of exoneration of guilt and discharge or is notified by the Georgia Crime Information Center that a defendant has completed his or her first offender sentence or was discharged pursuant to subsection (g) of this Code section, it shall be the duty of the clerk of court to enter on the criminal docket, accusation or indictment, sentencing order, and any subsequent order modifying the original first offender sentencing order within 30 days of the receipt of such order or notification the following:  "Discharge filed completely exonerates the defendant of any criminal purpose and shall not affect any of his or her civil rights or liberties, except for registration requirements under the state sexual offender registry and except with regard to employment as specified in Code Section 42-8-63.1; and the defendant shall not be considered to have a criminal conviction. O.C.G.A. 42-8-60."    The entry required by paragraph (1) of this subsection shall be written or stamped in red ink, dated, and signed by the individual making such entry; provided, however, that, if the criminal docket or court records are maintained electronically or using computer printouts, microfilm, or similar means, such entry shall be underscored, boldface, or made in a similar conspicuous manner, shall be dated, and shall include the name of the individual making such entry on the criminal docket, accusation or indictment, sentencing order, and any subsequent order modifying the original first offender sentencing order.     Except for the registration requirements under the state sexual offender registry and except as otherwise provided in Code Section 42-8-63.1, the first offender exoneration of guilt and discharge shall completely exonerate the defendant of any criminal purpose and shall not affect any of his or her civil rights or liberties, and the defendant shall not be considered to have a criminal conviction.   The court shall not sentence a defendant under the provisions of this article who has been found guilty of or entered a plea of guilty or a plea of nolo contendere for:   A serious violent felony as such term is defined in Code Section 17-10-6.1;   A sexual offense as such term is defined in Code Section 17-10-6.2;   Trafficking of persons for labor or sexual servitude as prohibited by Code Section 16-5-46;   Neglecting disabled adults, elder persons, or residents as prohibited by Code Section 16-5-101;   Exploitation and intimidation of disabled adults, elder persons, and residents as prohibited by Code Section 16-5-102;   Sexual exploitation of a minor as prohibited by Code Section 16-12-100;   Electronically furnishing obscene material to a minor as prohibited by Code Section 16-12-100.1;   Computer pornography and child exploitation as prohibited by Code Section 16-12-100.2;     Any of the following offenses when such offense is committed against a law enforcement officer while such officer is engaged in the performance of his or her official duties:   Aggravated assault in violation of Code Section 16-5-21;   Aggravated battery in violation of Code Section 16-5-24; or   Obstruction of a law enforcement officer in violation of subsection (b) of Code Section 16-10-24, if such violation results in serious physical harm or injury to such officer.     As used in this paragraph, the term "law enforcement officer" means:   A peace officer as such term is defined in paragraph (8) of Code Section 35-8-2;   A law enforcement officer of the United States government;   An individual employed as a campus police officer or school security officer;   A game warden; and   A jail officer employed at a county or municipal jail; or       Driving under the influence as prohibited by Code Section 40-6-391.     When a defendant has not been previously convicted of a felony, the court may, after an adjudication of guilt, sentence the defendant pursuant to this article as provided in Code Section 42-8-66 or modify a sentence as provided in subsection (f) of Code Section 17-10-1 so as to allow a sentence pursuant to this article.   A defendant shall not avail himself or herself of this article on more than one occasion.    (Ga. L. 1968, p. 324, § 1; Ga. L. 1982, p. 1807, § 1; Ga. L. 1985, p. 380, § 1; Ga. L. 1986, p. 218, § 1; Ga. L. 2006, p. 379, § 26/HB 1059; Ga. L. 2012, p. 172, § 1/SB 231; Ga. L. 2016, p. 443, § 6A-1/SB 367; Ga. L. 2019, p. 808, § 7/SB 72.)    The 2012 amendment,  effective July 1, 2012, deleted "or" at the end of paragraph (d)(4); substituted "; or" for a period at the end of paragraph (d)(5); and added paragraph (d)(6).    The 2016 amendment,  effective July 1, 2016, rewrote this Code section.    The 2019 amendment,  effective July 1, 2019, substituted "game warden" for "conservation ranger" in division (j)(9)(B)(iv).   Cross references.   - Probation for first offenders of laws relating to possession of narcotic drugs, marijuana, or other substances, § 16-13-2.    Punishment of misdemeanor first offenders, § 17-10-3.   Code Commission notes.   - Pursuant to Code Section 28-9-5, in 2006, "plea of guilty or" was substituted for "plea of guilty of" in the introductory language of subsection (d).   Editor's notes.   - Ga. L. 2006, p. 379, § 30/HB 1059, not codified by the General Assembly, provides that: "The provisions of this Act shall not affect or abate the status as a crime of any such act or omission which occurred prior to the effective date of the Act repealing, repealing and reenacting, or amending such law, nor shall the prosecution of such crime be abated as a result of such repeal, repeal and reenactment, or amendment." This Act became effective July 1, 2006.   Law reviews.   - For article on recidivism and convictions based on nolo contendere pleas, see 13 Ga. L. Rev. 723 (1979). For article on the effect of nolo contendere plea on conviction, see 13 Ga. L. Rev. 723 (1979). For annual survey of criminal law and procedure, see 41 Mercer L. Rev. 115 (1989). For annual survey article on evidence, see 50 Mercer L. Rev. 229 (1998). For annual survey of criminal law, see 57 Mercer L. Rev. 113 (2005). For annual survey of evidence law, see 57 Mercer L. Rev. 187 (2005). For article on 2006 amendment of this Code section, see 23 Ga. St. U.L. Rev. 11 (2006). For annual survey of criminal law, see 58 Mercer L. Rev. 83 (2006). For article, "No Second Chances: Immigration Consequences of Criminal Charges," see 13 Ga. St. B.J. 26 (2007). For annual survey of criminal law, see 67 Mercer L. Rev. 31 (2015). For article on the 2016 amendment of this Code section, see 33 Ga. St. U. L. Rev. 139 (2016). For note, "Padilla v. Kentucky: The Criminal Defense Attorney's Obligation to Warn of Immigration Consequences of Criminal Conviction," see 29 Ga. St. U.L. Rev. 891 (2012).   JUDICIAL DECISIONS   ANALYSIS    General Consideration   Procedure   Application to Specific Offenses   Sentencing Upon Revocation   Appeals    OPINIONS OF THE ATTORNEY GENERAL   Legislative intent.   - General Assembly's intent was to allow, within the court's discretion, the defendant to utilize first offender treatment for crime or crimes growing out of same conduct which may be the subject of multicount indictment. 1975 Op. Att'y Gen. No. U75-85.   General Assembly intended first offender probation to have a different result from ordinary periods of probation. 1978 Op. Att'y Gen. No. U78-21.   It was the intent of the General Assembly to give the trial judges authority to permit certain defendants, whom the judges believed to be worthy of an opportunity not to have a record of adjudication of guilt of a criminal offense, to undergo a period of probation, which if successfully completed would result in the defendants being discharged without there ever being an adjudication of guilt. 1978 Op. Att'y Gen. No. U78-21.   First offender probation is intended to have a different result from ordinary periods of probation. It was the intent of the General Assembly when it enacted this section to give the trial judges authority to permit those defendants whom the judges believed to be worthy of an opportunity not to have a record of adjudication of guilt for a criminal offense to serve a period of probation, which if successfully completed would result in the defendants being completely exonerated without there ever being any adjudication of guilt. 1980 Op. Att'y Gen. No. 80-79.   Probation administered prior to adjudication of guilt.    - Probation administered pursuant to O.C.G.A. § 42-8-60 is administered prior to adjudication of guilt. 1981 Op. Att'y Gen. No. U81-12.    Plea of guilty  does not fall under rule that such plea, when accepted and entered up, is tantamount to a conviction. 1971 Op. Att'y Gen. No. U71-87.   Payment of fine.   - Superior court judge may impose payment of fine as term and condition of probation for a defendant being treated as a first offender. 1975 Op. Att'y Gen. No. U75-42.    Applicability of § 42-8-65. - Provision of O.C.G.A. § 42-8-65 regarding release of record of discharge applies to records in cases when finding of guilt was made, pursuant to conviction or plea, but when adjudication of guilt was withheld pending successful completion of probation. 1981 Op. Att'y Gen. No. U81-32.   Split sentences.    - Sentencing court may impose a "split sentence" of a period of incarceration followed by a period of probation on defendants subject to O.C.G.A. § 42-8-60. 1985 Op. Att'y Gen. No. 85-40.   Revocation by court in circuit when probation imposed.   - Only the circuit imposing first offender probation may revoke that period of probation, even though supervision has been transferred to another judicial circuit. 1980 Op. Att'y Gen. No. 80-79.   Applicant for pistol permit.    - Applicant for a license to carry a pistol or revolver under former Code 1933, § 26-2904 (see now O.C.G.A. § 16-11-129) who had successfully completed, or who had been released prior to termination of the probationary period, did not have to be free from all restraint or supervision for a specified period of years before applying for a pistol permit, since the successful completion of the period of probation resulted in there being no adjudication of guilt and, therefore, no conviction. 1978 Op. Att'y Gen. No. U78-21.   Firefighter's qualifications not affected.    - Person serving probation under O.C.G.A. § 42-8-60 not convicted for purposes of Georgia Firefighter Standards and Training Act (O.C.G.A. T. 25, Ch. 4, Art. 1). 1981 Op. Att'y Gen. No. U81-12.    Fulfillment of terms of probation under O.C.G.A. § 42-8-60 or release by court prior to termination of period of probation is not a criminal conviction for purposes of Georgia Firefighter Standards and Training Act (O.C.G.A. T. 25, Ch. 4, Art. 1). 1981 Op. Att'y Gen. No. U81-12.    Individual in process of serving period of probation under O.C.G.A. § 42-8-60 should be treated, for purposes of Georgia Firefighter Standards and Training Act (O.C.G.A. T. 25, Ch. 4, Art. 1), in same manner as individual who has satisfactorily fulfilled terms of or who has been released from such probation. 1981 Op. Att'y Gen. No. U81-12.   First offender treatment not "conviction" under Drug-free Workplace Act.    - First offender treatment upon a verdict or plea of guilty is not a "conviction" within the meaning of the Drug-free Workplace Act (O.C.G.A. § 45-23-1 et seq.), applicable to public employees. 1992 Op. Att'y Gen. No. 92-10.   First offender treatment is "conviction" under Drug-free Campus Act.    - First offender treatment upon a verdict or plea of guilty is a "conviction" within the meaning of the Drug-free Postsecondary Education Act of 1990 (O.C.G.A. § 20-1-20 et seq.), applicable to students in institutions of higher learning. 1992 Op. Att'y Gen. No. 92-10.   RESEARCH REFERENCES   Am. Jur. 2d.   - 21 Am. Jur. 2d, Criminal Law, § 567 et seq.   C.J.S.   - 24 C.J.S., Criminal Law, §§ 2144-2161.   ALR.   - Plea of nolo contendere or non vult contendere, 89 A.L.R.2d 540.   Propriety, in imposing sentence for original offense after revocation of probation, of considering acts because of which probation was revoked, 65 A.L.R.3d 1100.   Acquittal in criminal proceeding as precluding revocation of probation on same charge, 76 A.L.R.3d 564.