2020 Georgia Code
Title 42 - Penal Institutions
Chapter 8 - Probation
Article 3 - First Offenders
§ 42-8-61. Defendant to Be Informed of Eligibility for Sentencing as First Offender

Universal Citation: GA Code § 42-8-61 (2020)

When a defendant is represented by an attorney, his or her attorney shall be responsible for informing the defendant as to his or her eligibility for sentencing as a first offender. When a defendant is pro se, the court shall inquire as to the defendant's interest in entering a plea pursuant to the terms of this article. If the defendant expresses a desire to be sentenced as a first offender, the court shall ask the prosecuting attorney or probation official if the defendant is eligible for sentencing as a first offender. When imposing a sentence, the court shall ensure that, if a defendant is sentenced as a first offender, he or she is made aware of the consequences of entering a first offender plea pursuant to the terms of this article.

(Ga. L. 1968, p. 324, § 3; Ga. L. 1982, p. 1807, § 2; Ga. L. 2015, p. 422, § 5-74/HB 310; Ga. L. 2016, p. 443, § 6A-1/SB 367.)

The 2015 amendment, effective July 1, 2015, substituted the present provisions of this Code section for the former provisions, which read: "The defendant shall be informed of the terms of this article at the time of imposition of sentence." See Editor's notes for applicability.

Editor's notes.

- Ga. L. 2015, p. 422, § 6-1/HB 310, not codified by the General Assembly, provides that: "This Act shall become effective July 1, 2015, and shall apply to sentences entered on or after such date."

Ga. L. 2016, p. 443, § 6A-1/SB 367, effective July 1, 2016, reenacted this Code section without change.

Law reviews.

- For article on the 2015 amendment of this Code section, see 32 Ga. St. U. L. Rev. 231 (2015). For article on the 2016 amendment of this Code section, see 33 Ga. St. U. L. Rev. 139 (2016).


Defendant informed of consequences if probation violated.

- 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).

Cited in Bethea County v. Dixon, 72 Ga. App. 384, 33 S.E.2d 723 (1945); Sims v. Fox, 492 F.2d 1088 (5th Cir. 1974); Johnson v. GMC, 144 Ga. App. 305, 241 S.E.2d 30 (1977); Dominy v. Mays, 150 Ga. App. 187, 257 S.E.2d 317 (1979).

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