2020 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

1. 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. Place the defendant on probation; or
   2. Sentence the defendant to a term of confinement.
2. 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.
3. When a court imposes a sentence pursuant to this article, it:
   1. 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
   2. May limit access to certain information as provided in subsection (b) of Code Section 42-8-62.1.
4. The court may enter an adjudication of guilt and proceed to sentence the defendant as otherwise provided by law when the:
   1. Defendant violates the terms of his or her first offender probation;
   2. Defendant is convicted for another crime during the period of his or her first offender sentence; or
   3. Court determines that the defendant is or was not eligible for first offender sentencing under this article.
5. 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:
   1. 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;
   2. 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
   3. Is released from confinement and parole, provided that the defendant is not serving a split sentence.
6. 1. 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.
   2. 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.
   3. 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.
   4. 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.
   5. 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.
7. 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.
8. 1. 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."

   2. 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.
9. 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.
10. 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:
    1. A serious violent felony as such term is defined in Code Section 17-10-6.1;
    2. A sexual offense as such term is defined in Code Section 17-10-6.2;
    3. Trafficking of persons for labor or sexual servitude as prohibited by Code Section 16-5-46;
    4. Neglecting disabled adults, elder persons, or residents as prohibited by Code Section 16-5-101;
    5. Exploitation and intimidation of disabled adults, elder persons, and residents as prohibited by Code Section 16-5-102;
    6. Sexual exploitation of a minor as prohibited by Code Section 16-12-100;
    7. Electronically furnishing obscene material to a minor as prohibited by Code Section 16-12-100.1;
    8. Computer pornography and child exploitation as prohibited by Code Section 16-12-100.2;
    9. 1. 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:
          1. Aggravated assault in violation of Code Section 16-5-21;
          2. Aggravated battery in violation of Code Section 16-5-24; or
          3. 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.
       2. As used in this paragraph, the term "law enforcement officer" means:
          1. A peace officer as such term is defined in paragraph (8) of Code Section 35-8-2;
          2. A law enforcement officer of the United States government;
          3. An individual employed as a campus police officer or school security officer;
          4. A game warden; and
          5. A jail officer employed at a county or municipal jail; or
    10. Driving under the influence as prohibited by Code Section 40-6-391.
11. 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.
12. 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).

- 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.

- 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).

- 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.

- 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).

ANALYSIS

• General Consideration
• Procedure
• Application to Specific Offenses
• Sentencing Upon Revocation
• Appeals

General Assembly intended first offender probation sentence to be preliminary only, and, if completed without violation, permits the offender complete rehabilitation without the stigma of a felony conviction. Stephens v. State, 152 Ga. App. 591, 263 S.E.2d 477 (1979), rev'd on other grounds, 245 Ga. 835, 268 S.E.2d 330 (1980).

- The 1982 amendment of O.C.G.A. § 42-8-60 is applicable only as to those defendants who committed their crime on or after November 1, 1982. Hahn v. State, 166 Ga. App. 71, 303 S.E.2d 299 (1983).

Sentencing of a defendant first offender to a term of confinement under the provisions of O.C.G.A. § 42-8-60, as amended effective November 1, 1982, for a crime committed on September 22, 1982, violated the ex post facto prohibition of the United States Constitution, when the law at the time of the commission of the crime contained no provision for a term of confinement. Taylor v. State, 181 Ga. App. 199, 351 S.E.2d 723 (1986).

- Although O.C.G.A. § 42-8-60 did not specifically provide for confinement as a condition of first-offender treatment before the 1982 amendment, when a condition of confinement was consented to by the defendant at the time the defendant's first-offender treatment was imposed and when no adjudication of guilt was entered at that time, the defendant's treatment was first-offender treatment even though ordered before the amendment, and the trial court did not err in revoking the first-offender treatment, entering an adjudication of guilt, and imposing a sentence which was harsher than the terms originally imposed. O'Ree v. State, 172 Ga. App. 51, 322 S.E.2d 89 (1984).

- Because the defendant, who was discharged without adjudication of guilt under the Georgia First Offender Act (GFOA), O.C.G.A. § 42-8-60 et seq., after successfully completing probation, was not entitled to expungement of records, defendant's prior drug conviction under the GFOA was not expunged and the district court properly included that conviction in the calculation of the defendant's criminal history category pursuant to U.S. Sentencing Guidelines Manual § 4A1.2 and properly sentenced the defendant to 21 months in prison for violating 21 U.S.C. § 841(a)(1), (b)(1)(C). United States v. Knight, F.3d (11th Cir. Nov. 15, 2005)(Unpublished).

Construction with O.C.G.A. § 17-10-1. - Trial court did not err by sentencing the defendant to both confinement and probation in violation of the First Offender Act, O.C.G.A. § 42-8-60(a), as the statute did not mandate a sentence of either confinement or probation, and the defendant's probation was not conditioned upon the defendant spending some specified time incarcerated; O.C.G.A. § 17-10-1(a)(1) granted to the sentencing judge the power and authority to suspend or probate all or any part of the entire sentence under such rules and regulations as the judge deems proper. Johanson v. State, 260 Ga. App. 181, 581 S.E.2d 564 (2003).

After the defendant was found guilty of arson and sentenced, the sentence could not be modified, pursuant to O.C.G.A. § 17-10-1(f) to grant the defendant first offender treatment because the plain language of the first offender statute, O.C.G.A. § 42-8-60 et seq., specifically prohibited such a modification after sentencing. Burchette v. State, 274 Ga. App. 873, 619 S.E.2d 323 (2005).

- State's claim that the defendant's sentence was not subject to review because the sentence followed a probation revocation was rejected as the defendant initially was sentenced as a First Offender; O.C.G.A. § 42-8-60 et seq., the sentence was revoked and a sentence of 12 or more years was imposed. State v. Swartz, 277 Ga. App. 241, 626 S.E.2d 210 (2006).

Trial court abused the court's discretion in not even considering the defendant's request for first-offender sentencing, based on the court's inflexible rule that the court did not consider first-offender sentencing when a defendant went to trial and the court's belief that the defendant should have testified; even though the trial court was not required to grant first-offender status, the court was required to at least consider defendant's request. Wnek v. State, 262 Ga. App. 733, 586 S.E.2d 428 (2003).

- Evidence produced after a comparison of DNA from a robbery scene to a Georgia Bureau of Investigation database did not violate the defendant's Fourth Amendment rights because the sample was taken pursuant to O.C.G.A. §§ 35-3-160(b) and35-3-165(b), while the defendant was serving a sentence under Georgia's First Offender Act, O.C.G.A. § 42-8-60, and the match was made when the defendant was on probation with a reduced expectation of privacy. United States v. Hinton, 676 Fed. Appx. 842 (11th Cir. 2017)(Unpublished).

- Trial court did not err in imposing a special requirement on defendant's probation of registration as a sex offender, even though the defendant was sentenced under the First Offender Act, O.C.G.A. § 42-8-60 et seq., as the imposition of that special condition was authorized under the language in O.C.G.A. § 42-8-62(a) and to rule otherwise would render meaningless the language in § 42-8-62(a) concerning registration requirements. Evors v. State, 275 Ga. App. 345, 620 S.E.2d 596 (2005).

- Prior to the 1998 amendments to O.C.G.A. § 17-10-6.1 and the First Offender Act, O.C.G.A. § 42-8-60 et seq., a defendant found guilty of a serious violent felony under § 17-10-6.1 was not barred from requesting and obtaining first offender treatment. Burns v. State, 241 Ga. App. 886, 528 S.E.2d 547 (2000).

Confinement not "incarceration." Sentence of defendant based on first offender treatment, to five years' probation, conditioned upon successive periods of confinement in a detention center, a diversion center, and in defendant's house under intensive supervision, was authorized and as such does not constitute incarceration, which refers to continuous and uninterrupted custody in a jail or penitentiary. Penaherrera v. State, 211 Ga. App. 162, 438 S.E.2d 661 (1993).

- Board of Immigration Appeals (BIA) did not abuse the Board's discretion when the Board denied the alien's motion to reopen because: (1) the alien pled guilty to two counts of child molestation and received five years probation on each count, thereby satisfying the requirements of 8 U.S.C. § 1101(a)(48)(A), and the mere fact that the alien was sentenced pursuant to Georgia's First Offender Act, O.C.G.A. § 42-8-60(a) did not mean that the alien lacked a "conviction" for purposes of 8 U.S.C. § 1227; (2) nothing in the alien's extraordinary motion for a new trial, the state's nolle prosse motion, or the superior court's orders indicated that the alien's guilty plea was taken in violation of Georgia law or the federal constitution; (3) although it was uncontroverted that a full and unconditional pardon would have defeated the charge that the alien was removable under 8 U.S.C. § 1227(a)(2)(A)(iii), the BIA did not abuse the Board's discretion when the Board refused to consider the alien's uncertified copy of the alien's pardon; and (4) even if the BIA had considered the alien's pardon, the pardon would not have eliminated the additional grounds for removal that the alien conceded to at the removal hearing. Mohammed Salim Ali v. United States AG, 443 F.3d 804 (11th Cir. 2006).

- Entry of a guilty plea under O.C.G.A. § 42-8-60 is not a "conviction" within the usual definition of that term. Priest v. State, 261 Ga. 651, 409 S.E.2d 657 (1991).

Georgia Supreme Court has explained that a first offender's guilty plea does not constitute a conviction as that term is defined in the Criminal Code of Georgia. Mays v. State, 345 Ga. App. 562, 814 S.E.2d 418 (2018).

- Trial court did not err in failing to give the defendant a behavioral-incentive date as required by O.C.G.A. § 17-10-1(a)(1)(B) because although it was undisputed that the defendant had no prior felony convictions, and the trial court imposed only a sentence of probation, the plain language of § 17-10-1(a)(1)(B) provided that the statute only applied when a defendant was convicted of felony offenses and since the defendant was sentenced as a first offender, the defendant was not convicted of any felony offenses. Mays v. State, 345 Ga. App. 562, 814 S.E.2d 418 (2018).

- Because the defendant agreed to plead guilty before the issue of first offender treatment was raised, the defendant did not rely to the defendant's detriment on being sentenced under the First Offender Act, O.C.G.A. § 42-8-60 et seq., when the defendant agreed to plead guilty and the determination that the defendant remained subject to removal despite treatment under the First Offender Act did not render void the plea agreement and discharge the first offender sentence. Lam v. State, 346 Ga. App. 337, 816 S.E.2d 168 (2018).

- Prospective petit juror serving a sentence under the First Offender Act, O.C.G.A. § 42-8-60 et seq., had not been "convicted" within the meaning of O.C.G.A. § 15-12-163(b)(5), which allowed either the state or the accused to object to the seating of a juror who had been convicted of a felony; the trial court therefore erred in disqualifying the juror for cause. Humphreys v. State, 287 Ga. 63, 694 S.E.2d 316, cert. denied, 131 S. Ct. 599, 178 L. Ed. 2d 438 (2010), overruled in part by Willis v. State, 304 Ga. 686, 820 S.E.2d 640 (2018).

Cited in Sims v. Fox, 492 F.2d 1088 (5th Cir. 1974); Davenport v. State, 136 Ga. App. 913, 222 S.E.2d 644 (1975); Dailey v. State, 136 Ga. App. 866, 222 S.E.2d 682 (1975); Hudson v. State, 137 Ga. App. 439, 224 S.E.2d 48 (1976); Johnson v. GMC, 144 Ga. App. 305, 241 S.E.2d 30 (1977); Crawford v. State, 144 Ga. App. 622, 241 S.E.2d 492 (1978); Heath v. State, 148 Ga. App. 559, 252 S.E.2d 4 (1978); Dominy v. Mays, 150 Ga. App. 187, 257 S.E.2d 317 (1979); Hogan v. State, 158 Ga. App. 495, 280 S.E.2d 891 (1981); Bearden v. State, 161 Ga. App. 640, 288 S.E.2d 662 (1982); Austin v. State, 162 Ga. App. 709, 293 S.E.2d 10 (1982); Puckett v. State, 163 Ga. App. 156, 293 S.E.2d 544 (1982); Burney v. State, 165 Ga. App. 268, 299 S.E.2d 756 (1983); Gilstrap v. State, 250 Ga. 814, 301 S.E.2d 277 (1983); Sultenfuss v. State, 169 Ga. App. 618, 314 S.E.2d 459 (1984); Kirby v. State, 170 Ga. App. 11, 316 S.E.2d 23 (1984); Wilson v. Attaway, 757 F.2d 1227 (11th Cir. 1985); Goforth v. Wigley, 178 Ga. App. 558, 343 S.E.2d 788 (1986); Moore v. Kemp, 809 F.2d 702 (11th Cir. 1987); Moreland v. State, 183 Ga. App. 113, 358 S.E.2d 276 (1987); Littlejohn v. State, 191 Ga. App. 852, 383 S.E.2d 332 (1989); Mobley v. State, 192 Ga. App. 719, 386 S.E.2d 384 (1989); Mays v. State, 200 Ga. App. 457, 408 S.E.2d 714 (1991); State v. Mohamed, 203 Ga. App. 21, 416 S.E.2d 358 (1992); Camaron v. State, 246 Ga. App. 80, 539 S.E.2d 577 (2000); Threlkeld v. State, 250 Ga. App. 44, 550 S.E.2d 454 (2001); Smith v. State, 282 Ga. App. 317, 638 S.E.2d 440 (2006); Ciccio v. City of Hephzibah, 289 Ga. App. 134, 656 S.E.2d 245 (2008); Walker v. State, 289 Ga. App. 879, 658 S.E.2d 375 (2008), overruled on other grounds, Gordon v. State, 334 Ga. App. 633, 780 S.E.2d 376 (2015); Rayshad v. State, 295 Ga. App. 29, 670 S.E.2d 849 (2008); Barrow v. Mikell, 298 Ga. 429, 782 S.E.2d 439 (2016); Walker v. State, 348 Ga. App. 273, 821 S.E.2d 567 (2018).

Procedure

Provisions not applicable to DUI cases.

- Phrase "relating to probation of first offenders" in O.C.G.A. § 40-6-391(f) refers to the general title of O.C.G.A. Art. 3, Ch. 8, T. 42, and does not purport to limit the prohibition of first offender treatment only to convictions for driving under the influence when probation is imposed. Sims v. State, 214 Ga. App. 443, 448 S.E.2d 77 (1994).

O.C.G.A. § 40-6-391(f) did not violate equal protection under the Fourteenth Amendment or Ga. Const. 1983, Art. I, Sec. I, Para. II by excluding DUI offenses from First Offender Act, O.C.G.A. § 42-8-60 et seq., coverage. The defendant did not show the absence of a rational relationship between the state's compelling interest in protecting the public's safety and the classification; the defendant's equal protection argument boiled down to no more than the claim that the legislature made a bad policy judgment about which offenders should be eligible for First Offender Act treatment. Rhodes v. State, 283 Ga. 361, 659 S.E.2d 370 (2008).

- Since judgments of conviction are not entered in cases proceeding under the First Offender Act, O.C.G.A. § 42-8-60 et seq., unless the defendant violates the terms of probation, the sentencing court retains jurisdiction both for resentencing and to consider a motion to withdraw a guilty plea after the end of the term of court in which the plea was entered. Tripp v. State, 223 Ga. App. 73, 476 S.E.2d 844 (1996).

- Defendant's first-offender petition filed after the verdict was returned but before the court entered the sentence was timely. Fleming v. State, 233 Ga. App. 483, 504 S.E.2d 542 (1998).

- Trial court in rendering sentence is not required to give first-offender status merely because it is requested, even if no previous offense is shown; but according to the circumstances of the case, including the conduct of the individual defendant in the crime, the trial court may give in the court's discretion any sentence prescribed by law for the offense. Welborn v. State, 166 Ga. App. 214, 303 S.E.2d 755 (1983).

Trial court is not required to render a first offender status merely because it is requested even when no previous offense is shown; the trial court may give in the court's discretion any sentence prescribed by law for an offense, or probation. Todd v. State, 172 Ga. App. 231, 323 S.E.2d 6 (1984); Head v. State, 203 Ga. App. 730, 417 S.E.2d 398 (1992).

Trial court did not abuse the court's discretion by refusing to grant defendant first offender treatment because the defendant committed a misdemeanor after the offense for which he sought first offender treatment. Stinnett v. State, 215 Ga. App. 224, 447 S.E.2d 165 (1994).

Following technical violations of the conditions of probation, short of conviction for another crime or a determination of initial ineligibility, the trial court had discretion to continue a first offender on probation without first revoking first offender status, entering an adjudication of guilt, and resentencing for the underlying offense. Mohammed v. State, 226 Ga. App. 387, 486 S.E.2d 652 (1997).

Nothing in Georgia's First Offender Act, O.C.G.A. § 42-8-60 et seq., required the trial court sua sponte to consider defendant's status as a first offender, and the trial court did not err by adopting a sentence that was consistent with the sentence the prosecutor agreed to recommend if the defendant pled guilty to robbery by intimidation. Gibson v. State, 257 Ga. App. 134, 570 S.E.2d 437 (2002).

Trial court did not fail to exercise the court's discretion in considering and then denying the defendant's request for first offender treatment with regard to the defendant's conviction upon a non-negotiated guilty plea for aggravated assault and possession of a firearm during the commission of a crime because the record showed that the trial judge considered the request and determined that, given the nature of the offense, it would be inappropriate to grant such status. Steele v. State, 270 Ga. App. 488, 606 S.E.2d 664 (2004).

Trial court did not abuse the court's discretion by failing to sentence the defendant as a first offender because although the defendant did not request first offender treatment, it was apparent from the record that the trial court knew of the defendant's lack of criminal convictions but nevertheless sentenced the defendant to 30 years, to serve 10, and 20 years consecutive on probation. Freeman v. State, 328 Ga. App. 756, 760 S.E.2d 708 (2014).

- Trial court did not abuse the court's discretion by denying the defendant's request for first offender treatment, pursuant to O.C.G.A. § 42-8-60, because the trial court's remarks during sentencing did not indicate a lack of awareness that the court had the discretion, was not applying a mechanical policy that prevented proper consideration of the request, or that there was an outright refusal to consider the request. McCullough v. State, 317 Ga. App. 853, 733 S.E.2d 36 (2012).

Trial court properly declined to grant appellant first offender treatment under O.C.G.A. § 42-8-60 on all the crimes in the four separate charging instruments to which the offender pled guilty because when the first judgment was entered, the offender had benefitted from first offender treatment on a verdict or plea and could not do so again. Higdon v. State, 291 Ga. 821, 733 S.E.2d 750 (2012).

- Under O.C.G.A. § 42-8-60(a), a trial court may place a first offender defendant on probation or sentence the defendant to a term of confinement as provided by law and nothing in the statute mandates a probationary period for first offenders; on the contrary, a trial court exercises the court's discretion in determining whether to grant probation to a first offender. Therefore, the defendant, who was sentenced as recommended by the plea agreement, properly had the defendant's motion to correct sentence denied. Wilson v. State, 259 Ga. App. 627, 578 S.E.2d 260 (2003).

- Trial court's use of a mechanical sentencing formula or policy whereby first offender status consideration was automatically refused violated O.C.G.A. § 42-8-60. Jones v. State, 208 Ga. App. 472, 431 S.E.2d 136 (1993).

Trial court violated O.C.G.A. § 42-8-60(a) by failing to exercise the court's discretion and refusing to consider sentencing defendant as a first offender because the defendant opted for a jury trial; the use of a mechanical sentencing formula was an abdication of judicial responsibility. Cook v. State, 256 Ga. App. 353, 568 S.E.2d 482 (2002).

Defendant's sentence for numerous threat, obstruction, and fleeing convictions could not stand since the trial court abdicated the court's judicial responsibility by adopting an inflexible rule in not hearing the defendant's oral motion for first offender treatment. Ramage v. State, 259 Ga. App. 616, 578 S.E.2d 245 (2003).

Appellate court discerned no basis for reconsideration of the defendant's sentence because there was no clear and unambiguous statement showing that the trial court failed to exercise the court's discretion in denying the request for first offender status. Garr v. State, 347 Ga. App. 555, 820 S.E.2d 193 (2018).

- Merely reminding the sentencing judge that the conviction is the defendant's first offense is not equivalent to a request for sentencing under the Georgia First Offender Act, O.C.G.A. § 42-8-60 et seq. Powell v. State, 271 Ga. App. 550, 610 S.E.2d 178 (2005).

- Defendant's 10-year sentence for forgery was affirmed as the defendant attorney twice reminded the sentencing court of defendant's first offender status, but did not request that the defendant be sentenced under the Georgia First Offender Act, O.C.G.A. § 42-8-60; absent clear, i.e., unambiguous, statements in the record showing: (1) an explicit request for First Offender Act treatment at the time of sentencing; and (2) a failure to exercise discretion as evidenced by a misunderstanding of the law or a general policy against First Offender Act treatment, a defendant's sentence must be upheld. Powell v. State, 271 Ga. App. 550, 610 S.E.2d 178 (2005).

Trial court was authorized to consider the defendant's indifference to both the terms of the bond requirements imposed and the underlying charges filed in the court's decision regarding whether or not to treat the defendant as a first offender; hence, the court did not err in declining to impose sentence under the first offender statute. Collins v. State, 281 Ga. App. 240, 636 S.E.2d 32 (2006).

First offender treatment may not be granted after defendant has been sentenced. Lewis v. State, 217 Ga. App. 758, 458 S.E.2d 861 (1995).

After the defendant was found guilty of arson and sentenced for that offense, the plain language of O.C.G.A. § 42-8-60(a) barred a trial court from considering the defendant's motion to be granted first offender treatment. Burchette v. State, 274 Ga. App. 873, 619 S.E.2d 323 (2005).

After a defendant was convicted for statutory rape, the trial court lacked jurisdiction to resentence the defendant as a first offender or to rescind the conviction or confinement portion of the sentence. First offender treatment was only permitted before a defendant had been adjudicated guilty and sentenced. State v. Stulb, 296 Ga. App. 510, 675 S.E.2d 253 (2009).

Trial court lacked jurisdiction to resentence the defendant under the First Offender Act, O.C.G.A. § 42-8-60 et seq., as the trial court resentenced the defendant as a first offender long after entering the court's final judgment on the felony conviction and sentencing the defendant, and the trial court was not at liberty to unwind the clock and modify the final judgment of conviction and sentence in order to grant first offender treatment and the court's attempt to do so was a mere nullity. State v. Spain, 332 Ga. App. 412, 773 S.E.2d 281 (2015).

- Trial court did not err by denying defendant first-offender treatment as defendant presented no evidence, in the form of a certified copy of the conviction in another state in which defendant was sentenced to a one-year term of probation, that the prior conviction in the other state was a misdemeanor. Middleton v. State, 264 Ga. App. 615, 591 S.E.2d 493 (2003).

- In a felony case where defendant's first offender status was removed from the sentence defendant received for pleading guilty to theft by receiving a stolen motor vehicle because defendant had previously pled guilty to a misdemeanor, the appellate court held that the Georgia First Offender Act, O.C.G.A. § 42-8-60 et seq., applied to misdemeanors. Stafford v. State, 251 Ga. App. 203, 554 S.E.2d 219 (2001).

- As a result of the changes made in 1985 to O.C.G.A. § 42-8-60, the use of a prior prosecution in which the defendant was given first offender treatment and successfully completed the terms of the defendant's probated sentence "is not allowable by law" as provided in O.C.G.A. § 42-8-65. Accordingly, the portion of the case in which the defendant was sentenced under subsection (a) of O.C.G.A. § 17-10-7 as a repeat offender had to be reversed and remanded for resentencing. Queen v. State, 182 Ga. App. 794, 357 S.E.2d 150 (1987) (holding Op. Att'y Gen. U81-32 incorrectly states present law).

Expungement upon completion of probation of the records of first offender treatment of criminal defendants runs contrary to the intent and the practical operation of the First Offender Act, O.C.G.A. § 42-8-60 et seq. State v. C.S.B., 250 Ga. 261, 297 S.E.2d 260 (1982).

- Notwithstanding the fact that a conviction does not result unless the person sentenced fails to complete satisfactorily the probationary period, the record of a first offender sentence may be used to impeach a witness in a civil action. Hightower v. GMC, 175 Ga. App. 112, 332 S.E.2d 336 (1985), overruled on other grounds, Pender v. Witcher, 196 Ga. App. 856, 397 S.E.2d 193 (1990), aff'd, 255 Ga. 349, 338 S.E.2d 426 (1986).

- Granting first offender treatment to the defendant for crimes for which the defendant could have been barred from seeking office for ten years constituted consideration for a plea agreement. State v. Barrett, 215 Ga. App. 401, 451 S.E.2d 82 (1994), rev'd on other grounds, 265 Ga. 489, 458 S.E.2d 620 (1995).

- If an offender does not take advantage of an opportunity for rehabilitation, the offender's trial which has been suspended is continued and an adjudication of guilt is made and a sentence entered. State v. Wiley, 233 Ga. 316, 210 S.E.2d 790 (1974).

If, by violating the terms of the defendant's probation, the defendant shows that the defendant is not worthy of the offered opportunity for rehabilitation then, and only then is the defendant sentenced to the penitentiary. No former adjudication of guilt having been made and no prior sentence having been entered thereon, the defendant is subject to receive any sentence permitted by law for the offense the defendant has been found guilty of committing. State v. Wiley, 233 Ga. 316, 210 S.E.2d 790 (1974).

- Certified copy of a criminal conviction constitutes sufficient evidence of a violation of the stated term of probation. Crawford v. State, 166 Ga. App. 272, 304 S.E.2d 443 (1983).

Better practice would be to introduce evidence of the criminal offense underlying the conviction as well as a certified copy of the conviction itself. If that is done, the fact that the conviction is reversed on appeal because of error, or because the evidence does not support a finding of guilt beyond a reasonable doubt, will not vitiate a revocation of probation properly based on slight evidence of the criminal offense. Crawford v. State, 166 Ga. App. 272, 304 S.E.2d 443 (1983).

Only slight evidence of the occurrence of probation violation will support a revocation. Crawford v. State, 166 Ga. App. 272, 304 S.E.2d 443 (1983); Anderson v. State, 177 Ga. App. 130, 338 S.E.2d 716 (1985).

As in probation revocation proceedings, only slight evidence is necessary to support a termination of probation under the first offender statute. Evans v. State, 185 Ga. App. 805, 366 S.E.2d 165 (1988).

Because the evidence showed that the probationer had continuous access to the firearms in the house on the day of a fatal shooting, and that the probationer intended to, and did in fact exercise control over the sons' access to one of the guns in the minutes leading up to the shooting, the trial court properly found that the probationer had constructive possession of the firearm. Wright v. State, 279 Ga. App. 299, 630 S.E.2d 774 (2006).

- After the defendant cross-examined a witness for the state regarding the witness's first offender sentence under the First Offender Act, O.C.G.A. § 42-8-60 et seq., in an effort to show witness bias, the trial court erred in requiring the defendant to introduce into evidence certified copies of the relevant sentencing record and in thus denying the defendant the right to open and conclude closing arguments by forcing the defendant to present evidence as the defendant had a right under the Confrontation Clause of U.S. Const., amend. VI to cross-examine the witness regarding the witness's first offender probation status to show bias, but the records relevant to that status were not admissible because there was no adjudication of the witness's guilt; the error, however, was harmless in light of the overwhelming evidence of the defendant's guilt. Smith v. State, 276 Ga. 263, 577 S.E.2d 548 (2003).

Trial court did not abuse the court's discretion in prohibiting the defendant's cross-examination of a witness regarding the witness's first offender plea in order to show bias and a motive to testimony favorable to the state because there was no evidence showing the connection between the witness's first offender status and the witness's desire to shade the witness's testimony to curry favor with the state; the defendant had to present facts in addition to the existence of two first offender pleas to support the defendant's efforts to impeach the witness for bias. Sanders v. State, 290 Ga. 445, 721 S.E.2d 834 (2012).

- Remand was necessary because it was unclear whether one of the defendant's convictions, which was a first offender conviction pursuant to O.C.G.A. § 42-8-60 et seq., was successfully completed, in which case there was no "conviction" as that term was defined under O.C.G.A. § 16-1-3(4) because there was no adjudication of guilt, or alternatively, whether the first offender sentence was violated and the trial court thereafter entered an adjudication of guilt and a sentence thereon, in which case it could be counted as one of the three felonies for purposes of recidivist sentencing under O.C.G.A. § 17-10-7(c). Swan v. State, 276 Ga. App. 827, 625 S.E.2d 97 (2005).

- Trial court did not err in instructing the defendant that the defendant would not be allowed to withdraw the Alford plea between the time the plea was entered and the pronouncement of the sentence; this instruction did not violate O.C.G.A. § 17-7-93(b) as that statute did not apply to pleas resulting in treatment as a first offender under the Georgia First Offender Act, O.C.G.A. § 42-8-60 et seq. Winkles v. State, 275 Ga. App. 351, 620 S.E.2d 594 (2005).

- Trial court properly denied the defendant's motion for an order of exoneration and to restrict access to the defendant's criminal record because the sentencing form was not ambiguous as the form merely established that the defendant was either being adjudged guilty or sentenced as a first offender, not both, and the form indicated, in bold print, that the disposition of the charged offense was guilty; thus, the sentencing form clearly indicated that the defendant was convicted of the charged offense. Coleman v. State, 352 Ga. App. 45, 833 S.E.2d 720 (2019).

- Court clerk properly discharged the clerk's duties regarding recording and reporting of a conviction and sentence in the plaintiff's 2011 criminal case; therefore, the case was remanded to the trial court for entry of an order reflecting that the plaintiff was discharged as of the date the first-offender sentence was completed, so the clerk could, in turn, fulfill the clerk's recording and reporting duties. Seibert v. Alexander, 351 Ga. App. 446, 829 S.E.2d 473 (2019), cert. denied, No. S20C0017, 2020 Ga. LEXIS 323 (Ga. 2020).

Application to Specific Offenses

Construed with rape conviction.

- Trial court did not err in denying the defendant's request to charge the jury on misdemeanor statutory rape and in imposing a felony sentence as: (1) a charge of misdemeanor statutory rape was not supported by the evidence due to the difference in the defendant's and the victim's age at the time of the offense; (2) the defendant's requested charge set forth an incorrect principle of law within the context of the case; and (3) the sentence of five years probation under the First Offender Act, O.C.G.A. § 42-8-60 et seq., fell within the statutory range. Orr v. State, 283 Ga. App. 372, 641 S.E.2d 613 (2007).

Based on the plain language of O.C.G.A. §§ 17-10-6.2(a)(4) and42-8-60(d)(2), a defendant who commits statutory rape is excluded from first offender consideration if the defendant was 21 years of age or older. Thus, a defendant who was 18 at the time of the offense and 19 at the time of the conviction was eligible for first offender consideration. Planas v. State, 296 Ga. App. 51, 673 S.E.2d 566 (2009).

§ 40-5-75 provisions on controlled substances. - Section40-5-75, which mandates driver's license suspension for any person convicted of possession of a controlled substance or marijuana, does not apply to those defendants who are given first offender treatment under O.C.G.A. § 42-8-60. Priest v. State, 261 Ga. 651, 409 S.E.2d 657 (1991).

Defendant who is given first offender treatment has not been "convicted" within the meaning of O.C.G.A. § 40-5-75 and mandatory driver's license suspension is not required. Priest v. State, 261 Ga. 651, 409 S.E.2d 657 (1991).

Construed with O.C.G.A. § 17-10-6.1. - Applying the Georgia Supreme Court's holding from Fleming v. State, 271 Ga. 587, 523 S.E.2d 315 (1999), resentencing was required because, prior to the 1998 amendments to O.C.G.A. §§ 17-10-6.1 and42-8-60 et seq., a defendant found guilty of a serious violent felony under § 17-10-6.1 was not precluded from requesting and obtaining first offender treatment. Burleson v. State, 242 Ga. App. 217, 529 S.E.2d 228.

- Sentencing court could not revoke probation for failure to pay fine and restitution, absent evidence and findings that defendant was somehow responsible for the failure or that alternative forms of punishment were inadequate. Bearden v. Georgia, 461 U.S. 660, 103 S. Ct. 2064, 76 L. Ed. 2d 221 (1983).

- Because the defendant was not entitled to first offender treatment for the crimes of child molestation and enticing a child for indecent purposes, to which the defendant pled guilty, the defendant's claims that trial counsel was deficient for misinforming the defendant about the defendant's eligibility for and failing to request first offender treatment were without merit. Harris v. State, 325 Ga. App. 568, 754 S.E.2d 148 (2014), recons. denied, 2019 U.S. App. LEXIS 30410 (11th Cir. Ga. 2019), overruled on other grounds by Collier v. State, 834 S.E.2d 769, 2019 Ga. LEXIS 708 (Ga. 2019).

- Because there was no evidence that the cellmate was ineligible for first-offender treatment under the probation for first offenders statute in 2009 based on the cellmate pleading guilty in 2004 to misdemeanor drug possession, and being sentenced as a first offender under the conditional discharge for possession of a controlled substance as a first offense statute, the cellmate's failure to inform the court in the 2009 case that the cellmate had formerly been given first offender treatment in the misdemeanor drug-possession case did not present a credibility issue, and trial counsel was not ineffective in failing to cross-examine the cellmate about being twice sentenced as a first offender to attack the cellmate's credibility. Brittain v. State, 329 Ga. App. 689, 766 S.E.2d 106 (2014).

Sentencing Upon Revocation

Adjudication of guilt upon violation of probation or conviction for other crime.

- When no adjudication of guilt had been made and no prior sentence had been entered, it is clear that if an individual on probation under the First Offender Act violates the terms of the individual's probation or is convicted for another crime, the trial court may enter an adjudication of guilt and impose any sentence permitted by law for the offense the individual has been found guilty of committing. Beasley v. State, 165 Ga. App. 160, 299 S.E.2d 886 (1983).

By committing a new crime, defendant lost the benefit of first offender status, and the unadjudicated guilt in connection with the prior state offense was properly considered a prior conviction for purposes of sentencing under the U.S. Sentencing Guidelines Manual, which pursuant to U.S. Sentencing Guidelines Manual § 4A1.2, mandated the imposition of criminal history points, even if doing so undermined the purpose of the Georgia's First Offender Act, O.C.G.A. § 42-8-60 et seq. United States v. Barner, 572 F.3d 1239 (11th Cir. 2009).

Trial court did not err in increasing the sentence originally imposed upon the defendant because the defendant was informed when the first offender probation sentence was pronounced that, upon an adjudication of guilt, the defendant could be sentenced to the maximum allowable under the law; although the sentencing form was ambiguous since both the first offender treatment box and the felony sentence box were checked the ambiguity in the form was not fatal to the trial court's imposition of a sentence greater than the original one. Otuwa v. State, 303 Ga. App. 410, 693 S.E.2d 610 (2010).

- Trial court had jurisdiction to impose sentence on drug possession charges based upon the defendant's violation of probation imposed for those offenses even though the defendant's three-year period of first offender probation had already expired, after the state had filed a petition for imposition of sentence prior to expiration of the probation period. State v. Boyd, 189 Ga. App. 617, 377 S.E.2d 11 (1988), cert. denied, 490 U.S. 1111, 109 S. Ct. 3168, 104 L. Ed. 2d 1030 (1989).

Trial court had the authority to revoke the defendant's first offender status and enter an adjudication of guilt for the defendant's violations of probation, pursuant to O.C.G.A. §§ 42-8-34(g) and42-8-60(b), because the defendant was still serving the defendant's probated sentence. Further, because the trial court, when pronouncing the defendant's first offender sentence, advised the defendant that, upon adjudication of guilt, the defendant could be resentenced to the statutory maximum for two counts of child molestation, and that the time served would be credited against the defendant's new sentence, the trial court was authorized to increase the sentence originally imposed. Kaylor v. State, 312 Ga. App. 633, 719 S.E.2d 530 (2011).

- When a person on probation as a first offender violates the terms of the offender's probation and adjudication of guilt is entered pursuant to O.C.G.A. § 42-8-60, the offender is subject to receive any sentence permitted by law, including a sentence greater than the period to be served on probation which was originally imposed under the first offender law. Austin v. State, 162 Ga. App. 709, 293 S.E.2d 10 (1982).

Since the defendant was informed at the time the defendant was originally placed on probation that the defendant could receive full sentence upon violation of the defendant's probation, the court, in revoking the defendant's probation, did not lack authority to impose a 10-year sentence on the ground that the first-offender sentencing document entered by the court imposed only five years. Griffin v. State, 163 Ga. App. 871, 295 S.E.2d 863 (1982).

When the defendant's sentence under paragraph (a)(1) was five years' probation, with the requirement that 90 to 120 days be served in a probation boot camp, later modified to a probation detention center, when the defendant's probation was revoked, the trial court could have sentenced the defendant to the maximum penalty for the burglary conviction. McKinney v. State, 240 Ga. App. 812, 525 S.E.2d 395 (1999).

- When a probationer is sentenced to serve time in a penal institution for the offense for which the probationer has spent time on probation, that probation time must be credited to any sentence received, including cases involving first offender probation. Stephens v. State, 245 Ga. 835, 268 S.E.2d 330 (1980); Perdue v. State, 155 Ga. App. 802, 272 S.E.2d 766 (1980); Lillard v. State, 156 Ga. App. 54, 274 S.E.2d 96 (1980); Howell v. State, 159 Ga. App. 577, 284 S.E.2d 82 (1981); McKinney v. State, 240 Ga. App. 812, 525 S.E.2d 395 (1999).

When first offender probation under subsection (b) of O.C.G.A. § 42-8-60 is revoked, credit must be given for time served on probation. Tallant v. State, 187 Ga. App. 138, 369 S.E.2d 789 (1988).

After the defendant violated the terms of the defendant's probation, the court could not impose the maximum sentence without giving the defendant credit for time served on probation, since to do so would impose a sentence exceeding the maximum allowed by law. Franklin v. State, 236 Ga. App. 401, 512 S.E.2d 304 (1999).

In the case of defendant who was convicted and sentenced for child molestation, a resentencing order requiring defendant to serve a total of 13 years - five to be served in prison beyond the three already served on probation, to be followed by an additional five years on probation - was not error because defendant was resentenced within the maximum sentence allowable by law, defendant was clearly advised of this possibility, and the court credited the time already served on probation. Roland v. Meadows, 273 Ga. 857, 548 S.E.2d 289 (2001).

- Trial court does not err in imposing a greater sentence on defendant than the original first offender sentence, in revoking defendant's earlier probation, when the first offender sentence of probation plainly stated, "If such probation is revoked or cancelled, the court may adjudge the defendant guilty of the above offense and impose any sentence permitted by law for the . . . offense." Crawford v. State, 166 Ga. App. 272, 304 S.E.2d 443 (1983).

Trial court erred in imposing greater sentence than revoked term of four years' probation, and in refusing to give defendant credit for time served on probation. Lillard v. State, 156 Ga. App. 54, 274 S.E.2d 96 (1980).

Trial court violated original sentencing order by imposing new sentence greater than that originally imposed and erred in failing to give credit for time served on probation. Saladine v. State, 165 Ga. App. 836, 302 S.E.2d 739 (1983).

Revocation sentence not error. See Beeks v. State, 169 Ga. App. 499, 313 S.E.2d 760 (1984).

Sentence vacated and resentencing ordered when the trial court erred by increasing a juvenile defendant's voluntary manslaughter sentence after the defendant had already begun serving the sentence, because the original sentence was final at the time the sentence was imposed, and the defendant had no reason to believe otherwise; hence, the trial court's increased sentence constituted double jeopardy and could not stand. Williams v. State, 273 Ga. App. 42, 614 S.E.2d 146 (2005).

- Trial court's 1998 sentencing order denying defendant exoneration and discharge was void as a matter of law because the state never filed a motion for revocation; thus, exoneration and discharge was automatic under the First Offender Act, O.C.G.A. § 42-8-60(e), (g), and (h), and the defendant's motion to correct a void sentence was improperly denied. Collins v. State, 338 Ga. App. 886, 792 S.E.2d 134 (2016).

Double jeopardy concerns did not prohibit resentencing after original sentence had begun being served if the resentencing was allowed by law and the defendant had no reasonable expectation in the finality of the original sentence; resentencing after a defendant had begun serving the original sentence was allowed under the First Offender Act, O.C.G.A. § 42-8-60 et seq., because the defendant initially lied to the trial court about a prior conviction to receive first offender treatment, and since the defendant was warned by the trial court that the defendant was subject to resentencing if the defendant was untruthful about the defendant's record, the defendant had no reasonable expectation that the original sentence was final. Wilford v. State, 278 Ga. 718, 606 S.E.2d 252 (2004).

- Trial court did not err in denying the defendant's motion to correct an illegal sentence because, in accordance with the plain language of the First Offender Act, O.C.G.A. § 42-8-60 et seq., and O.C.G.A. § 42-8-65(c), during the defendant's term of confinement, the defendant, who pled guilty to first degree cruelty to children, O.C.G.A. § 16-5-70, was deemed to be a convicted felon for purposes of the State-Wide Probation Act, O.C.G.A. § 42-8-35.4, and, consequently, within a category of persons eligible to serve the ordered term of confinement at a probation detention center; the legislature is presumed to have had full knowledge of the First Offender Act when the legislature enacted the State-Wide Probation Act. Mason v. State, 310 Ga. App. 118, 712 S.E.2d 76 (2011).

Appeals

Appeal discretionary.

- Because the drug court program under O.C.G.A. § 16-13-2(a) is similar to the first offender statute of O.C.G.A. § 42-8-60 and because § 42-8-60 appeals are discretionary under O.C.G.A. § 5-6-35(a)(5), the discretionary appeal procedures of § 5-6-35(a)(5) must be followed when appealing after violation of the conditions of the drug court program. Andrews v. State, 276 Ga. App. 428, 623 S.E.2d 247 (2005).

- Presumption exists that a trial court has regularly and correctly conducted the proceedings; thus, absent clear statements in the record showing an explicit request for first offender treatment at the time of sentencing and a failure to exercise discretion as evidenced by a misunderstanding of the law or a general policy against first offender treatment, the appellate court will affirm the sentence as pronounced by the trial court. McCullough v. State, 317 Ga. App. 853, 733 S.E.2d 36 (2012).

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 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.

- 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.

- 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.

- 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 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.

- 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 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 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.

- 24 C.J.S., Criminal Law, §§ 2144-2161.

- 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.