Many times when I sit down with potential clients facing criminal charges, they have two major concerns: 1) staying out of jail and 2) keeping a conviction off their record. While the first concern requires a detailed analysis of the facts of each individual case, the Georgia Legislature has given attorneys tools to help clients with the second concern. Those tools are referred to in the legal community as “first offender” and “conditional discharge.”

The statute that relates to first offender status is found at O.C.G.A. § 42-8-60. What this statute allows is for a person who does not have a prior felony to enter a plea and be sentence without being considered “guilty.” In other words, if a person without a prior felony requests the court to sentence them as a first offender, they will begin serving their sentence but they will not have a conviction on their record. If they complete their sentence successfully, then they will walk away from the case without a conviction. This is the tremendous benefit of this statute. The downside to first offender is that if a person violates the terms of their sentence they can be brought back before the court and re-sentenced. This means if someone received 5 years on probation for a crime with a maximum penalty of 10 years, then the court could vacate the previous 5 year sentence and put that person in jail for up to 10 years. On the bright side, the court must give a person credit for the time they have already served on the sentence and the court is not required to put the person in jail.

Other considerations must be weighed by individuals trying to decide whether to utilize first offender. First, once someone uses first offender, they cannot use it again. Therefore, if a person decides to use first offender on a misdemeanor and they get a felony charge later, then they will not be able to use first offender for that felony. Second, being sentenced under the first offender act does not mean the court MUST give someone probation. A person may be sentenced as a first offender but still go to jail. Third, the statute specifically lists certain crimes for which a person may not be sentenced as a first offender. For example, serious violent felonies and certain sex crimes are not eligible for first offender treatment. Additionally, a person cannot use first offender for a DUI. Finally, allowing someone to be sentenced under the first offender act is discretionary. In short, the judge does not have to grant someone first offender status even if that person is eligible.

There are many other nuances to this statute. The best approach is to seek an experienced criminal defense attorney to educate yourself about first offender.