A new Georgia law allows people to take advantage of the First Offender Act even after they have been sentenced.
Under Georgia’s First Offender Act, an individual’s criminal case is discharged and the individual is completely exonerated of any criminal wrongdoing. Before the change in law, an individual could only receive First Offender treatment at the time of sentencing. This change in law is an exciting opportunity for individuals who want to erase a conviction from their criminal record.
The process is fairly simple and can be broken down into three steps. First, it must be determined if a person is eligible to receive First Offender treatment retroactively. To be eligible, the person must have been able to receive First Offender treatment at the time he was originally sentenced. There are some offenses under Georgia law that do not qualify for First Offender treatment (such as some violent felony offenses and sex offenses). The vast majority of offenses, however, qualify for First Offender treatment if the person does not have a prior felony conviction and has not previously been sentenced under the First Offender Act.
To get First Offender treatment after sentencing, the person must have been unaware that he qualified before he was sentenced. If the person requested First Offender at the time of sentencing but was denied First Offender treatment by the judge, he would most likely not be eligible to receive First Offender treatment retroactively.
The second step in the process is to file a petition in the court where the person was convicted. A petition will request that the court hold an evidentiary hearing to determine whether First Offender treatment should be granted. In order to file a petition, the prosecuting attorney that handled the original case (the district attorney’s office or solicitor’s office) must first consent to the filing of the petition.
The third and final step is a hearing on the petition. At the hearing, the judge will determine if the person was eligible for First Offender treatment at the time of sentencing and whether the ends of justice and the welfare of society are served by granting the petition.
There are certain factors that a court considers when determining whether to grant First Offender treatment retroactively. The most common factor is a person’s criminal history. An individual greatly increases his chances of being granted First Offender treatment if he has not been arrested or convicted of any other offenses since the time he received his first conviction.
A judge will also look at what the person has done with his life since the conviction. Most judges want to be assured that the person is a productive member of society. This can be demonstrated by calling different types of witnesses to testify at the hearing. Friends and family members can show that a person is stable and not viewed as a threat to the community. Employers and co-workers can show that an individual is a hard worker and valuable to society. An individual’s former probation officer can show that a person follows direction and respects the law. Other types of witnesses may also be helpful depending on the nature of the offense.
Everyone’s case is different, and there are many other factors that should be taken into account to determine the viability of such a petition (like the county where the conviction occurred, the prosecuting attorney, and the amount of time that has passed since sentencing). The first step is to contact a criminal defense lawyer who can assess whether an individual is eligible for First Offender treatment and the likelihood of being successful. If you or someone you know wants to get a conviction erased from his record, give us a call and we will tell you if we can help.
Page Pate is an accomplished trial lawyer with over 25 years of experience in criminal defense, civil litigation, and whistleblower representation. Page is listed in The Best Lawyers in America, Top 100 Lawyers by The National Trial Lawyers, and named to the list of Super Lawyers for the past 15 consecutive years. Page is a frequent expert legal analyst for local and national media and has served as an Adjunct Professor at the University of Georgia Law School. Read Page’s reviews on AVVO. Follow Page on Twitter @pagepate and on Linkedin.