“A promise is a cloud, fulfillment is rain.” – Author Unknown –
Each year, there are thousands of Georgians who use poor judgment and are arrested on their first felony offense in their lives. This situation occurs across age, racial, and socioeconomic spectrums. Most of the time, these are not bad people.
That is why our state enacted Georgia’s First Offender Act (FOA). This Act allows for some first-time offenders to plead guilty or no contest to certain crimes and avoid a conviction. When the defendant goes before the judge and enters a plea under the FOA, the judge accepts the guilty plea, but does not order that the defendant has a conviction for the offense.
Some offenses makes a defendant ineligible for a First Offender status. If the defendant is charged with DUI, serious violent felonies, severe crimes against law enforcement officers, a serious sexual offense, sexual exploitation of a minor, or child pornography the FOA is not available.
Regarding all other crimes, if the defendant completes the sentence without violating conditions or getting into more trouble, he will be deemed to not have a felony conviction.
Today, this is extremely important because of employment issues. Most employers are very hesitant in hiring a convicted felon.
The problem under this scenario is that during employee background checks, employers will see things like the arrest date, “first offender plea”, “first offender”, or other information that is confusing and sometimes misleading.
It is commonly misunderstood that a defendant must fully complete their sentence under the FOA before their arrest, disposition, and sealing of the record can take place.
This is untrue.
A few years ago, I was speaking with Judge Cynthia Adams (Douglas County Superior Court) about the FOA. She pointed out that Georgia law provides that a first offender record can be sealed and restricted at the time of sentencing. She even gave me a form that she created to present to judges in first offender cases.
The law that she provided fulfills the commitment of the FOA.
Why?
It is now possible to be sentenced under the FOA and have the background record “erased” and fingerprints, police reports, indictments, etc. to be placed under seal. This means that the public cannot access this information. This assists a defendant in gaining meaningful employment while on probation rather than having to wait for years to obtain a good job and contribute to the burden of state and federal taxation.
There is one exception. Both federal and state law enforcement officers and officials can have access to this information.
There is also a downside to being treated as a first offender. Georgia law mandates that GCIC (the state criminal database) change the sentence to a conviction if the person is arrested or convicted of another offense while still on probation for the first offense.
The defendant can also be resentenced to time in the state penitentiary.
Retroactive First Offender Status
Many individuals don’t even know they may pursue First Offender status until years after their misdemeanor or a felony conviction.
But, Georgia has also taken another step to fulfill the commitment of the FOA.
Today, first offenders with felony convictions who could have been eligible for a First Offender status but didn’t know about it, can petition the court retroactively.
They first have to prove they were eligible for First Offender status when they were sentenced and that they weren’t aware of that possibility. In addition, the prosecuting attorney has to approve the request, and then the court will hold a hearing to determine whether to grant First Offender status.
If the status is granted, they can get their criminal record restricted.
The FOA is now what it was truly meant to be; a second chance for people who have had one bad mistake that places them in the criminal justice system.