2020 Georgia Code
Title 42 - Penal Institutions
Chapter 8 - Probation
Article 3 - First Offenders
§ 42-8-62. Duty of Clerk to Transfer Information

When an individual is placed on probation or in confinement under this article, within 30 days of the filing of such sentence, the clerk of court shall transmit a record of the first offender sentence to the Georgia Crime Information Center. The clerk shall also transmit any subsequent order or notification regarding a first offender's sentence, including, but not limited to, notification that the defendant completed active probation supervision, was released early from probation supervision, or completed the term of probation, notification that the defendant completed the term of prison or parole, an order revoking a first offender sentence, an order of exoneration of guilt and discharge, and tolling orders, to the Georgia Crime Information Center within 30 days of receiving such order for filing or notification.

(Ga. L. 1968, p. 324, § 2; Ga. L. 1978, p. 1621, § 1; Ga. L. 1982, p. 1807, § 3; Ga. L. 1985, p. 283, § 1; Ga. L. 1986, p. 442, § 1; Ga. L. 1990, p. 735, § 1; Ga. L. 2001, p. 1004, § 2; Ga. L. 2003, p. 840, § 4; Ga. L. 2016, p. 443, § 6A-1/SB 367.)

The 2016 amendment, effective July 1, 2016, rewrote this Code section.

- For article on the 2016 amendment of this Code section, see 33 Ga. St. U. L. Rev. 139 (2016). For note on the 2001 amendment of this Code section, see 18 Ga. St. U.L. Rev. 227 (2001). For note on the 2003 amendment to this Code section, see 20 Ga. St. U.L. Rev. 179 (2003).

JUDICIAL DECISIONS

Probation sentence merely preliminary.

- Any probationary sentence entered under this section is preliminary only, and, if completed without violation, permits an offender complete rehabilitation without the stigma of a felony conviction. If, however, such offender does not take advantage of such opportunity for rehabilitation, the offender's trial which, in effect, 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).

- Subsection (a) of O.C.G.A. § 42-8-62 allows a defendant's slate to be wiped clean for the purposes of recordation of a criminal conviction and its effect on civil rights or liberties after a defendant successfully fulfills the first offender terms. It does not prohibit restrictions on a defendant's civil rights or liberties imposed during service of the first offender term. Salomon v. Earp, 190 Ga. App. 405, 379 S.E.2d 217 (1989), overruled on other grounds, Pender v. Witcher, 196 Ga. App. 856, 397 S.E.2d 193 (1990).

- Despite the defendant's two violations of the conditions of probation, because no adjudication of guilt was entered during the term of the defendant's first offender probationary sentence, upon fulfillment of the probationary period, the defendant was entitled to discharge without an adjudication of guilt under O.C.G.A. § 42-8-62(a). Ailara v. State, 311 Ga. App. 862, 717 S.E.2d 498 (2011).

- Provision of O.C.G.A. § 16-11-129(b), prohibiting the granting of a pistol permit to a person convicted as a first-offender for possession of a controlled substance, applied prospectively to an applicant who had been discharged as a first-offender five years before enactment of the provision. Foss v. Probate Court of Chatham County, 232 Ga. App. 612, 502 S.E.2d 278 (1998).

- "Discharge" of a non-first-offender probationer is automatic upon the successful completion of the terms of the sentence and is not dependent upon the subsequent formalization of that successful completion. State v. Mills, 268 Ga. 873, 495 S.E.2d 1 (1998).

After the defendant was sentenced under O.C.G.A. Art. 3, Ch. 8, T. 42 to five years of probation on one count, followed by five consecutive 12 month sentences on other counts, the defendant was entitled to have the defendant's record cleared of the first count under O.C.G.A. Art. 3, Ch. 8, T. 42 after completing the defendant's first five years of probation. Arrington v. State, 234 Ga. App. 187, 505 S.E.2d 851 (1998).

Defendant, pursuant to O.C.G.A. § 42-8-62(a), was not automatically discharged under the Georgia First Offender Act, O.C.G.A. § 42-8-60, when the defendant was released from confinement because the automatic discharge of the defendant occurred upon the successful completion of the terms of the defendant's sentence. Kaylor v. State, 312 Ga. App. 633, 719 S.E.2d 530 (2011).

Regardless of whether mandamus was an appropriate remedy, the inmate was entitled to have the record properly reflect the inmate's discharge under the First Offender Act because the inmate's discharge was automatic upon the inmate's release from confinement and not upon any formalized certification by the trial court. Because the trial court had neither revoked the inmate's first-offender status nor entered an adjudication of guilt, the inmate was discharged upon the inmate's release from confinement in May 2001, and the clerk's records incorrectly represented that the inmate was discharged in December 2014 reflecting when the trial court's order was dated and filed. Seibert v. Alexander, 351 Ga. App. 446, 829 S.E.2d 473 (2019), cert. denied, No. S20C0017, 2020 Ga. LEXIS 323 (Ga. 2020).

Defendant's driver's license was properly suspended after the defendant pled guilty to, and received sentences as a first offender for, two counts of homicide by vehicle in the first degree and one count of driving with ability impaired by alcohol. Salomon v. Earp, 190 Ga. App. 405, 379 S.E.2d 217 (1989), overruled on other grounds, Pender v. Witcher, 196 Ga. App. 856, 397 S.E.2d 193 (1990).

- As a result of the changes made in 1985 to O.C.G.A. § 42-8-62, 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).

Because the defendant had completed a three-year first-offender probationary sentence and had been discharged without court adjudication of guilt pursuant to O.C.G.A. § 42-8-62 at the time the defendant allegedly violated O.C.G.A. § 16-11-131, the trial court properly dismissed the charge. State v. Mills, 268 Ga. 873, 495 S.E.2d 1 (1998).

Because the defendant, who was discharged without adjudication of guilt under the Georgia First Offender Act (GFOA) 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 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).

- In both civil and criminal cases, unless there is an adjudication of guilt, a witness may not be impeached on general credibility grounds by evidence of a first offender record. Matthews v. State, 268 Ga. 798, 493 S.E.2d 136 (1997).

Under the First Offender Act, O.C.G.A. § 42-8-60 et seq., the trial court properly prohibited a defendant from impeaching a witness with a forgery offense. The defendant cited no authority in support of the argument that this violated the defendant's rights under the confrontation clause of the Sixth Amendment, and the court held that impeachment to show a general lack of trustworthiness based on a prior criminal conviction was not guaranteed by the confrontation clause. Butler v. State, 285 Ga. 518, 678 S.E.2d 92 (2009).

- Evidence of a first offender's guilty plea is not admissible for the purpose of impeaching a witness by showing the witness to have been convicted of a crime involving moral turpitude, even though it is admissible in a civil trial to impeach an adverse witness by disproving or contradicting the witness's testimony. Witcher v. Pender, 260 Ga. 248, 392 S.E.2d 6 (1990).

- Section did not provide for "rehabilitation" within the meaning of Rule 609(c), Fed. R. Evid., which prohibits evidence of a prior conviction for purposes of impeachment if the conviction has been the subject of a "rehabilitation." Wilson v. Attaway, 757 F.2d 1227 (11th Cir.), rehearing denied, 764 F.2d 1411 (11th Cir. 1985).

- Trial court erred in admitting testimony and documents concerning defendant's entry of the first-offender guilty plea to commercial gambling since the defendant was still on probation at the time of the condemnation trial, and because it was not used for impeachment purposes, its use was prohibited. Jones v. State, 212 Ga. App. 682, 442 S.E.2d 880 (1994).

Defendant's guilty plea to an offense for which the defendant received first-offender treatment should not have been admitted as evidence that the defendant committed a similar independent offense. Davis v. State, 269 Ga. 276, 496 S.E.2d 699 (1998).

- Defendant's first offender record was properly considered at the defendant's sentencing hearing, and evidence regarding the defendant's underlying behavior in connection with the first offender plea was not required. Williams v. State, 228 Ga. App. 622, 492 S.E.2d 290 (1997).

Trial court did not err in allowing the state to impeach the defendant's girlfriend using the girlfriend's first-offender plea because the state did not use the girlfriend's guilty plea to impeach the girlfriend's general credibility, but instead used it to show bias through evidence that the defendant had previously attempted to accept responsibility for the girlfriend's criminal conduct in a different matter, and the trial court acted well within the court's discretion in allowing the state to explore whether the defendant's previous attempt to accept responsibility for the girlfriend's criminal conduct might have influenced the girlfriend's trial testimony. Hall v. State, 335 Ga. App. 895, 783 S.E.2d 400 (2016).

- Prospective juror who had fulfilled probation requirements was eligible under O.C.G.A. § 42-8-62(a) for jury duty in a criminal case. Griffith v. State, 286 Ga. App. 859, 650 S.E.2d 413 (2007).

- 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 § 42-8-62(a) and to rule otherwise would render meaningless the language in O.C.G.A. § 42-8-62(a) concerning registration requirements. Evors v. State, 275 Ga. App. 345, 620 S.E.2d 596 (2005).

- Defendant was not required to register as a sexual offender because the defendant successfully completed a first-offender sentence for statutory rape and burglary charges, and a "conviction" under O.C.G.A. § 42-1-12(a)(8) did not include a discharge without an adjudication of guilt following the successful completion of a first offender sentence; the plain language of O.C.G.A. § 42-8-62(a) provided that, with certain exceptions, once a first offender was discharged without an adjudication of guilt, he or she stood completely exonerated and was not considered as having been convicted of a crime. Jackson v. State, 299 Ga. App. 356, 683 S.E.2d 60 (2009).

- Defendant's convictions for armed robbery, aggravated assault, and kidnapping of a couple in a residence were reversed on appeal. Evidence that one victim was ordered from a standing to a lying position and that another was dragged around the home was insufficient to establish asportation to support the kidnapping counts. The defendant's convictions for armed robbery and aggravated assault were reversed as the defendant established ineffective assistance of counsel based on trial counsel's failure to object to the inadmissible hearsay statements of two witnesses and the admission of improper impeachment evidence against the defendant regarding a crime for which the defendant was never adjudicated guilty for as a result of being a first offender. Rayshad v. State, 295 Ga. App. 29, 670 S.E.2d 849 (2008).

- Trial court's 1998 sentencing order denying the 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 the void sentence was improperly denied. Collins v. State, 338 Ga. App. 886, 792 S.E.2d 134 (2016).

Cited in 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); Moore v. Kemp, 809 F.2d 702 (11th Cir. 1987); Romano v. State, 193 Ga. App. 682, 388 S.E.2d 757 (1989); Tilley v. State, 197 Ga. App. 97, 397 S.E.2d 506 (1990); Melton v. State, 216 Ga. App. 215, 454 S.E.2d 545 (1995); State v. Allmond, 225 Ga. App. 509, 484 S.E.2d 306 (1997); Norman v. Yeager, 335 Ga. App. 470, 781 S.E.2d 580 (2016).

OPINIONS OF THE ATTORNEY GENERAL

Probation sentence not necessarily conviction.

- Placing of an individual on probation does not by itself result in a conviction and any person serving such a probation has not suffered a conviction which would disfranchise the individual; the individual therefore would be eligible to vote. 1974 Op. Att'y Gen. No. 74-26.

- Fulfillment of the terms of probation or the release by the presiding court prior to termination of a period of probation is not a criminal conviction for purposes of Ga. L. 1973, p. 693, § 1 et seq. (see now O.C.G.A. Ch. 4, T. 25). 1976 Op. Att'y Gen. No. 76-130.

Placement or discharge of person from first offender probation is disposition to be accurately recorded, maintained, and reported by Georgia Crime Information Center. 1975 Op. Att'y Gen. No. 75-110.

- Confidentiality provisions of the First Offender Act having been repealed at the 1990 session of the General Assembly, the court records of first offenders are, subject to the requirement in subsection (a) of O.C.G.A. § 42-8-62 for a red ink marking on the records, public records subject to public inspection and viewing in the same manner as other records of criminal actions in the office of the clerk of the superior court. Thus, except as otherwise provided by law, these documents are public records which are subject to public viewing and inspection. 1991 Op. Att'y Gen. No. U91-5.

RESEARCH REFERENCES

Am. Jur. 2d.

- 21 Am. Jur. 2d, Criminal Law, §§ 526-536. 21A Am. Jur. 2d, Criminal Law, §§ 946-956.

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