Just recently, the Georgia Legislature passed a bill, now Georgia Code 42-8-66, known as the retroactive first offender statute. This statute is geared towards providing first offender treatment to first-time offenders who pleaded guilty to a felony but did not know about first offender treatment. Normally the courts’ plea forms include a question about whether first offender treatment has been explained and requested. Thus, most people arguably had notice about first offender who plead guilty. However, if you were convicted of a felony and you never knew you were entitled to first offender, you may still be able to get it retroactively.
The Requirements
The first requirement to getting first offender retroactively is getting the prosecutor onboard where the original conviction took place. The statute requires that the prosecutor consent to the petition requesting retroactive first offender. Once the prosecutor consents, your attorney should prepare a motion asking the judge for a hearing on the matter.
At the hearing, the court will consider any evidence you or the prosecutor provide as well as any other relevant evidence. If possible, you should be prepared to present evidence you never knew you could plead guilty using first offender. You may also consider presenting witnesses who can vouch for your good character. The judge will also have to make sure that you would have qualified for first offender originally. To qualify generally, you must have never been convicted of a felony in any place or at any time (outside the felony you are requesting first offender for). What’s more, the felony in question must not be a serious violent felony or other statutorily prohibited felony. Lastly, whether you were revoked on your probation will also influence the judge’s determination.
In making the determination, the judge must first determine that you would have qualified for first offender when you were originally sentenced. Second, she must determine whether the “ends of justice and the welfare of society are served by granting such petition.”
The Bottom Line
Having your attorney request retroactive first offender is a great avenue for those convicted of a felony who didn’t know their options. Unless you are granted a pardon, there is virtually no way to remove a felony conviction from your record in Georgia. This statute is one of the only ways to get an “exoneration of guilt and discharge” for a felony conviction. Talk with an attorney today if you think retroactive first offender may work for you.
Frequently Asked Questions: Georgia Retroactive First Offender Status
- Who is eligible for Retroactive First Offender status?
To qualify under Georgia Code 42-8-66, you must have been eligible for First Offender status at the time of your original sentencing but were not informed of it. This means you must have had no prior felony convictions at the time. Additionally, the conviction in question cannot be for a serious violent felony or a statutorily prohibited sexual offense.
- Is prosecutor consent required to file the petition?
Yes. The statute explicitly requires the consent of the prosecuting attorney from the county where the original conviction occurred. Without the prosecutor’s written agreement to the petition, a judge cannot grant retroactive first offender treatment.
- What is the legal effect of being granted this status?
If the judge grants the petition, the original conviction is replaced with an “exoneration of guilt and discharge.” Legally, this means you are no longer considered a convicted felon under Georgia law, which restores rights such as the ability to possess a firearm and hold certain professional licenses.
- What factors does a judge consider during the hearing?
The court must determine if you were truly eligible during your original plea and if granting the petition serves the ends of justice and the welfare of society. The judge will review your criminal history since the conviction, your performance while on probation, and any character evidence or testimony presented by your attorney.
- Can I apply if my probation was revoked?
A probation revocation significantly impacts the judge’s determination but does not automatically disqualify you. The judge has the discretion to weigh the circumstances of the revocation against your overall rehabilitation and the interest of justice when deciding whether to grant the exoneration.