2020 Georgia Code
Title 42 - Penal Institutions
Chapter 8 - Probation
Article 3 - First Offenders
§ 42-8-64. Appeal of Sentence Imposed Under Article
A defendant sentenced pursuant to this article shall have the right to appeal in the same manner and with the same scope and same effect as if a judgment of conviction had been entered and appealed from.
(Ga. L. 1968, p. 324, § 5; Ga. L. 2016, p. 443, § 6A-1/SB 367.)
Editor's notes.- 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 2016 amendment of this Code section, see 33 Ga. St. U. L. Rev. 139 (2016).
JUDICIAL DECISIONS
Need written order or judgment.
- Court of Appeals lacks jurisdiction to entertain an appeal under O.C.G.A. § 5-6-34(a) from a conviction upon imposition of first-offender status absent a written trial court order imposing first offender status upon the defendant or a written judgment of conviction and sentence. Littlejohn v. State, 185 Ga. App. 31, 363 S.E.2d 327 (1987).
Denial of exoneration and discharge was void.
- 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).
Direct appeal from conviction.
- Section provides defendant direct appeal from conviction upon imposition of first-offender status, notwithstanding the absence of a formal and final "adjudication of guilt." Dean v. State, 177 Ga. App. 123, 338 S.E.2d 711 (1985).
Appeal from revocation of probationary status granted under First Offender Act.
- Appeal from adjudication of guilt and sentence serving to revoke probationary status granted under the First Offender Act, O.C.G.A. § 42-8-60 et seq., is by discretionary appeal, as provided in O.C.G.A. § 5-6-35(a)(5), rather than direct appeal. Dean v. State, 177 Ga. App. 123, 338 S.E.2d 711 (1985); Anderson v. State, 177 Ga. App. 130, 338 S.E.2d 716 (1985).
Failure to appeal accepted sentence.
- Since the defendant was apparently satisfied with the defendant's sentence at time the sentence was entered as the defendant did not appeal from the sentence as was the defendant's right, and the defendant also readily accepted the benefits of first offender treatment and probation, the defendant will not be heard to complain that the fine was excessive. Brainard v. State, 246 Ga. 586, 272 S.E.2d 683 (1980).
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).
RESEARCH REFERENCES
Am. Jur. 2d.
- 21 Am. Jur. 2d, Criminal Law, §§ 526-536. 59 Am. Jur. 2d, Pardon and Parole, § 42.
C.J.S.- 24 C.J.S., Criminal Law, §§ 2144-2161.
ALR.
- Acceptance of probation, parole, or suspension of sentence as waiver of error or right to appeal or to move for new trial, 117 A.L.R. 929.
