2021 Georgia Code
Title 42 - Penal Institutions
Chapter 8 - Probation
Article 3 - First Offenders
§ 42-8-66. Petition for Exoneration and Discharge; Hearing; Retroactive Grant of First Offender Status; No Filing Fee

1. 1. An individual who qualified for sentencing pursuant to this article but who was not informed of his or her eligibility for first offender treatment may, with the consent of the prosecuting attorney, petition the court in which he or she was convicted for exoneration of guilt and discharge pursuant to this article.
   2. An individual who was sentenced between March 18, 1968, and October 31, 1982, to a period of incarceration not exceeding one year but who would otherwise have qualified for sentencing pursuant to this article may, with the consent of the prosecuting attorney, petition the court in which he or she was convicted for exoneration of guilt and discharge pursuant to this article.
2. The court shall hold a hearing on the petition if requested by the petitioner or prosecuting attorney or desired by the court.
3. In considering a petition pursuant to this Code section, the court may consider any:
   1. Evidence introduced by the petitioner;
   2. Evidence introduced by the prosecuting attorney; and
   3. Other relevant evidence.
4. The court may issue an order retroactively granting first offender treatment and discharge the defendant pursuant to this article if the court finds by a preponderance of the evidence that the defendant was eligible for sentencing under the terms of this article at the time he or she was originally sentenced or that he or she qualifies for sentencing under paragraph (2) of subsection (a) of this Code section and the ends of justice and the welfare of society are served by granting such petition.
5. The court shall send a copy of any order issued pursuant to this Code section to the petitioner, the prosecuting attorney, the Georgia Crime Information Center, and the Department of Driver Services. The Georgia Crime Information Center and the Department of Driver Services shall modify their records accordingly.
6. This Code section shall not apply to a sentence that may be modified pursuant to subsection (f) of Code Section 17-10-1.
7. This Code section shall apply to any sentence entered on or after March 18, 1968.
8. There shall be no filing fee charged for a petition filed pursuant to this Code section.

(Code 1981, §42-8-66, enacted by Ga. L. 1998, p. 180, § 3; Ga. L. 2015, p. 422, § 5-75/HB 310; Ga. L. 2016, p. 443, § 6A-1/SB 367; Ga. L. 2017, p. 566, § 1/HB 261; Ga. L. 2018, p. 550, § 2-15/SB 407.)

The 2015 amendment, effective July 1, 2015, substituted the present provisions of this Code section for the former provisions, which read: "The provisions of this article shall not apply to any person who is convicted of a serious violent felony as defined in subsection (a) of Code Section 17-10-6.1." See Editor's notes for applicability.

The 2016 amendment, effective July 1, 2016, in subsection (a), substituted "exoneration of guilt and discharge" for "discharge and exoneration"; and, in subsection (e), substituted "the Georgia Crime Information Center, and the Department of Driver Services. The Georgia Crime Information Center and the Department of Driver Services shall modify their" for "and the Georgia Bureau of Investigation. The Georgia Bureau of Investigation shall modify its" near the end.

The 2017 amendment, effective July 1, 2017, designated the existing provisions of subsection (a) as paragraph (a)(1); added paragraph (a)(2); inserted "or that he or she qualifies for sentencing under paragraph (2) of subsection (a) of this Code section" in the middle of subsection (d); and added subsection (g).

The 2018 amendment, effective July 1, 2018, deleted "superior" preceding "court", and deleted "in the county" preceding "in which he or she" in the middle of paragraphs (a)(1) and (a)(2); and added subsection (h).

- Ga. L. 1998, p. 180, § 1, not codified by the General Assembly, provides: "The General Assembly declares and finds: (1) That the 'Sentence Reform Act of 1994,' approved April 20, 1994 (Ga. L. 1994, p. 1959), provided that persons convicted of one of seven serious violent felonies shall serve minimum mandatory terms of imprisonment which shall not otherwise be suspended, stayed, probated, deferred, or withheld by the sentencing court; (2) That in State v. Allmond , 225 Ga. App. 509 (1997), the Georgia Court of Appeals held, notwithstanding the 'Sentence Reform Act of 1994,' that the provisions of the First Offender Act would still be available to the sentencing court, which would mean that a person who committed a serious violent felony could be sentenced to less than the minimum mandatory ten-year sentence; and (3) That, contrary to the decision in State v. Allmond , it is the expressed intent of the General Assembly that persons who commit a serious violent felony specified in the 'Sentence Reform Act of 1994' shall be sentenced to a mandatory term of imprisonment of not less than ten years and shall not be eligible for first offender treatment."

Ga. L. 2015, p. 422, § 5-73/HB310, not codified by the General Assembly, provides: "This Act shall become effective July 1, 2015, and shall apply to sentences entered on or after such date."

- For review of 1998 legislation relating to penal institutions, see 15 Ga. St. U. L. Rev. 197 (1998). 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). For annual survey on criminal law, see 69 Mercer L. Rev. 73 (2017). For article on the 2018 amendment of this Code section, see 35 Ga. St. U. L. Rev. 45 (2018). For note, "Can't Do the Time, Don't Do the Crime?: Dixon v. State, Statutory Construction, and the Harsh Realities of Mandatory Minimum Sentencing in Georgia," see 22 Ga. St. U. L. Rev. 519 (2005).

JUDICIAL DECISIONS

Applicability to offenses committed before 1998.

- Since the serious violent felonies committed by defendant occurred prior to the March 29, 1998, amendment to O.C.G.A. § 17-10-6.1 and the enactment of O.C.G.A. § 42-8-66, then the prohibition of § 42-8-66 had no retroactive application to the defendant to limit the discretion of the trial judge in the sentence to impose. Camaron v. State, 246 Ga. App. 80, 539 S.E.2d 577 (2000).

- Because, by its own terms, O.C.G.A. § 42-8-66(d), applied only to sentences entered on or after July 1, 2015, the petition for retroactive application of first offender treatment was not available to the defendant, whose sentence was imposed before that date. Bishop v. State, 341 Ga. App. 590, 802 S.E.2d 39 (2017).

- The First Offender Act, O.C.G.A. § 42-8-60 et seq., does not apply to the sentences for violent felonies outlined in O.C.G.A. § 17-10-6.1. Fleming v. State, 233 Ga. App. 483, 504 S.E.2d 542 (1998), overruling State v. Allmond, 225 Ga. App. 509, 484 S.E.2d 306 (1997).

Defendant found guilty of a serious violent felony under O.C.G.A. § 17-10-6.1 could apply for first offender status prior to the 1998 amendments to O.C.G.A. Art. 3, Ch. 8, T. 42 and § 42-8-66. Fleming v. State, 271 Ga. 587, 523 S.E.2d 315 (1999), reversing Fleming v. State, 233 Ga. App. 483, 504 S.E.2d 542 (1998), reversing Fleming v. State, 233 Ga. App. 483, 504 S.E.2d 542 (1998). Horton v. State, 241 Ga. App. 605, 527 S.E.2d 254 (1999);.

There was no error in the trial court's failure to convict the defendant of kidnapping and armed robbery, in violation of O.C.G.A. §§ 16-5-40 and16-8-41, respectively, under the First Offender Act, as O.C.G.A. § 42-8-66 specifically stated that the Act did not apply to the sentences for violent felonies outlined in O.C.G.A. § 17-10-6.1, and those two crimes were listed as serious violent felonies. Isaac v. State, 275 Ga. App. 254, 620 S.E.2d 483 (2005).

Cited in Staley v. State, 233 Ga. App. 597, 505 S.E.2d 491 (1998); Burleson v. State, 233 Ga. App. 769, 505 S.E.2d 515 (1998).