Georgia First Offender Act And Conditional Discharge Explained : Lawyer Directory

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Georgia First Offender Act And Conditional Discharge Explained

by Benjamin Von Schuch (BVS Law Firm)

A felony conviction affects the lives of convicted felons for the rest of their lives. They can not vote, hold certain public offices, own a gun, and have a difficult time finding an employer that will hire them. The Georgia legislature recognized that sometimes people make mistakes at a young age, change their lives and should be offered a second chance. The answer to this concern was the enactment of the First Offender Act (FOA).

If requested by the defendant, the FOA allows a judge to sentence them without actually convicting them of a crime. The judge sentences the defendant to probation, jail or a combination of both. The defendant must serve the sentence as if they were convicted, but the defendant’s criminal history remains clean and they have the same rights as everyone else. Once the sentence is complete, the defendant’s criminal record remains clean.

The FOA is very beneficial to a defendant that completes their sentence without violating probation, but it has very negative consequences if probation or other terms are violated. Not only can a judge convict the defendant of the original felony, but they can re-sentence the defendant to the maximum possible sentence. A defendant can have a 3 year probation sentence under the FOA and be re-sentenced to 30 years in prison. The defendant does not have the right to a jury and the State has a reduced burden to show that the sentence was violated. Every defendant needs to carefully consider both the positive and negative aspects before asking for the FOA.

There are four requirements to the FOA: 1. no prior felonies convictions, 2. no prior use of FOA or something similar in another state, 3. Charges are not specifically excluded from the FOA, and 4. acceptance by the judge. FOA is a one time benefit and is in the sole discretion of the judge whether they will accept the FOA or not. Most judges will allow the use of FOA, but some judges refuse to allow the FOA on certain charges or facts. In Georgia, serious violent crimes and sex crimes are ineligible for the FOA.

Conditional Discharge is similar to FOA but it only applies to drug crimes and non-violent property crimes that are sentenced to 5 years or less of probation. It has the same negative consequences as FOA. Conditional Discharge is really a great option if charged with a misdemeanor marijuana possession because it allows the defendant to keep their driver’s license and the defendant will still be able to use the FOA in the future.

FOA offers defendants the ability to avoid many of the harsh consequences that convicted felons face for the rest of their lives. They can vote, own a gun, and don’t have to deal with employment discrimination. The negative consequence is the possibility of being re-sentenced to the maximum without the right to a jury trial if probation is violated. Every defendant should carefully consider if they want to accept the risk of the FOA. A criminal defense attorney can give you the best advice on whether to use FOA or not.

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