A question we often get in Georgia criminal cases is whether a criminal defendant will receive credit for the time he or she has served. This usually comes up when a person is arrested for a crime and has spent time in jail before the resolution of the case. In the cases where the defendant bonds out of jail immediately, credit for time served does not come up.

When a defendant is denied bond or cannot pay the bond amount, they may sometimes spend months and even years locked up before trial, a plea, or a dismissal of the case. What happens to all that time that has built up? The simple answer, under Georgia law, is that such a person gets automatic credit for each and every day spent in confinement toward the sentence they were being confined under.

Under O.C.G.A. 17-10-11, a person is to get credit for each and every day for any “pre-trial confinement, for any reason, since the date of arrest, for the offense which is the subject of the sentence; and post-trial confinement awaiting the remitter from an appellate court or transfer to the Department of Corrections or other court ordered institution or facility.”

Exceptions to the Rule

It is important to note that under this particular code section, time served must be given automatically and the judge or prosecutor has no discretion to take it away from the accused. There are instances, however, when credit for time served is not given automatically and it is left to the judge’s discretion, meaning the judge may choose not to give your credit. These instances are listed specifically in O.C.G.A. 17-10-11 and include sentences to a probation detention center, work release program, and for misdemeanor offenses when the time spent in confinement was in a jurisdiction other than that of the sentence.

Another important exception to keep in mind concerns issues with probation. People who are arrested for new crimes while on probation are often arrested separately for a probation violation for committing a new offense. Time spent incarcerated for a probation violation or awaiting a probation revocation hearing may not necessarily be credited to the underlying sentence.

The Importance of Hiring an Attorney

Credit for time served can have a substantial impact on a defendant’s life. It could be the difference between being released at sentencing or going to prison; a fair sentence and an unfair sentence; or freedom or additional confinement. No one wants to spend any more time in confinement than is necessary or required by law. And no one should have to. When dealing with questions of credit for time served, it is important to consult with or hire an attorney who can help you receive credit towards your sentence for every day that you deserve. Call us today for a free consultation.

In the past, if you have been convicted of a crime in Georgia it has been very difficult if not impossible to remove these convictions from your background and criminal history. This has caused problems for countless people, especially for those seeking employment, housing, professional licensing, and more.

One important exception has been First Offender and Conditional Discharge, but these laws usually deal with felonies and can only be used once. If an individual has used first offender and is convicted of a felony thereafter, that felony is essentially there for life.

Several years ago, Georgia passed a retroactive first offender statute, which allows those with a felony conviction, who could have been sentenced as first offenders had they known about it, to petition the court retroactively to receive first offender status. Today Bill SB 288 expands expungement opportunities for many people with criminal history.

The New Law

Adding to these criminal justice reforms, late last year Governor Kemp signed into law SB 288. This act provides potential record expungement for qualifying misdemeanor and felony convictions. Effective January 1, 2021, many misdemeanor and some felony convictions are eligible for record restriction and sealing, effectively removing them from public and private background checks.

For qualifying misdemeanor convictions, a person can petition the Court to restrict up to two convictions four years after the sentence is complete. A sentence is fully complete when all jail time has been served and probation has been terminated. This law applies to all misdemeanors except for those specifically listed under O.C.G.A. 35-3-37(j)(4), which includes traffic offenses (such as DUI), family violence battery, sexual crimes, and more.

For felony convictions, a person must apply for and receive a pardon for the offense before he or she is eligible to petition the court for expungement. This step obviously makes the process more difficult, but a large amount of felony offenses are still available for expungement, excluding crimes such as murder, armed robbery, rape, child molestation, sexual exploitation of a minor, and more.

Bottom Line

SB 288 is a large step forward for criminal justice reform in the State of Georgia and greatly expands expungement relief for many with a criminal histories. If you have questions about whether you are eligible for relief under the new expungement law, give our office a call today and schedule a free consultation.