FAQs – First Offender

First Offender

32. What is the First Offender Act?

If you are sentenced as a First Offender and successfully complete your sentence, you will not have a conviction and the record of the case will be sealed from your official criminal history report. Certain First Offender records related to serious sexual or violent offenses remain available for employment with children, elderly, and the mentally disabled. First Offender records will also be available for law enforcement and criminal justice purposes. The intent of the law is to give first time offenders a chance to learn from their mistake and move on with their lives without the burden of a conviction.

33. Who is eligible for First Offender?

You qualify for First Offender if you have a pending misdemeanor or felony case and the following are true:

  • You have never been convicted of a felony (in any state);
  • You have never been sentenced as a First Offender;
  • Your charge is not Driving under the Influence (DUI);
  • Your charge is not a serious crime committed against a law enforcement officer engaged in his or her duties;
  • Your charge is not a serious violent felony
  • Your charge is not a serious sexual offense
  • Your charge is not related to child pornography and
  • Your charge is not related to electronic sexual exploitation of a minor or computer pornography

34. Do I automatically get First Offender for my first offense?

No, before plea and sentence, you or your attorney must ask to be sentenced under the First Offender Act and the judge must agree. You have no right to appeal if the judge denies your request to be sentenced under the First  Offender Act.

35. Is a First Offender sentence a conviction?

No, First Offender adjudication is not a conviction. It is a “deferred adjudication,” which means that even though you plead guilty, a conviction is not entered. If you successfully complete the terms of your sentence, the court will “discharge” the case without conviction. When the discharge is filed, the criminal records are sealed from your official criminal history report. You will not have a conviction for the offense(s).

If, however, you violate the terms of your sentence/probation the judge may revoke your First Offender status. If your First Offender status is revoked, you will be convicted of the offense(s). In addition, if your First Offender status is revoked, the court may sentence you to the maximum penalty allowed by law for the offense(s). You should also be aware that GCIC is required by law to enter a revocation on your record if you are convicted of another crime while on First Offender probation. This happens even if the court does not revoke your First Offender status. If you are not revoked and are continued as a First Offender, the correction can be made to your GCIC criminal history record.

36. How do I know if I was sentenced as a First Offender?

Your Georgia criminal history record should reflect whether you received First Offender status. Also, if you were sentenced as a First Offender, the sentencing sheet/final disposition will reflect this status.

37. Is Conditional Discharge the same as First Offender?

You can be sentenced under Conditional Discharge Act even if you have already been sentenced as a First Offender and vice versa. Under the new record restriction law, beginning on July 1, 2013, successfully completed Conditional Discharge cases will be restricted from your GCIC criminal history record.

38. Can I get my First Offender charges restricted?

No, successfully completed First Offender charges are sealed from your record only by an Order of Discharge.

39. I was discharged under the First Offender Act, so why is it still showing up on my GCIC criminal history record?

When you successfully complete your sentence, your probation officer is required to recommend to the judge that the case be discharged under the First Offender Act. The judge is then required to sign an Order of Discharge and file it at the clerk’s office so the charge is sealed from your GCIC criminal history record. After the discharge is entered, the records of your case will be sealed on your official criminal history (for most purposes). If the incident is still showing on your GCIC criminal history record, some part of the process was not completed.

40. My First Offender case was sealed from my GCIC criminal history record, so why is it showing up on my private background reports?

Many employers obtain criminal history records from private companies. If a private company reports your discharged First Offender case, contact the company and ask them not to provide information about the arrest and disposition on your criminal history report. They may refuse because records of the case are still available to the public. If this happens you may want to contact a private attorney.

41. Can employers see my discharged First Offender case?

Employers obtaining criminal history information from GCIC will generally not be able to see discharged First Offender cases, but there are exceptions. If you are applying for a job to work with children, the elderly, or the mentally ill, then employers will be able to see discharged First Offender cases for certain sexual offenses. Also, certain state licensing agencies can see discharged First Offender cases on your record. Your First Offender case remains on your criminal history while you are still on probation and is only sealed after successful discharge.

Court records of First Offender cases kept by the clerk of court remain publicly available after discharge. The First Offender Act requires that the clerk stamp the file to indicate discharge and exoneration, but because the records remain publicly available they will continue to show up on private background reports.

42. Do I have to tell an employer about my case if I was discharged under the First Offender Act?

If you successfully completed your sentence and your case was discharged, you have not been convicted of the offense(s). If a potential employer asks only about convictions, you do not have to report the First Offender discharge. If the potential employer asks about arrests, however, you should report the arrest.

43. Can I sue the potential employer if I didn’t get hired because of a discharged First Offender case?

Although the First Offender Act states that a discharged First Offender case “may not be used to disqualify a person in any application for employment or appointment to office in either the public or private sector,” Georgia courts have ruled that employers can make decisions based on discharged First Offender cases because of Georgia’s status as an at-will employment state.

How to Understand the First Offender Act

If you are sentenced under Georgia’s First Offender Act and successfully complete your sentence, you will not have a conviction and the charge will be sealed from your official criminal history.

ELIGIBILITY:

  1. You have never been convicted of a felony (in any state);
  2. You have never been sentenced as a First Offender;
  3. Your charge is not Driving under the Influence (DUI);
  4. Your charge is not a serious crime committed against a law enforcement officer engaged in his duties;
  5. Your charge is not a serious violent felony (O.C.G.A. §17-10-6.1);
  6. Your charge is not a serious sexual offense (O.C.G.A. §17-10-6.2);
  7. Your charge is not related to child pornography (O.C.G.A. §16-12-100.2); and
  8. Your charge is not related to electronic sexual exploitation of a minor, computer pornography (O.C.G.A. §§ 16-12-100, et. seq)

PROCESS:

  1. You or your attorney must ask the judge to sentence you under the First Offender Act before you are sentenced.
  2. The judge decides whether to sentence you as a First Offender, with input from your attorney and the prosecutor. (NOTE: If the judge denies the request, the decision cannot be appealed.)
  3. If the judge decides to treat you as a First Offender, you will be sentenced. During your sentence, your official criminal history report will say “First Offender Act” as the result of the case.
  4. If you violate the terms of your sentence, including committing another crime, and the judge revokes your First Offender status, you will be convicted and could be sentenced to the maximum punishment for the offense(s).
  5. If you successfully complete your probation, the probation officer will request an Order of Discharge from the judge.
  6. The judge will issue the order, and it will be filed with the clerk of court (be sure to keep a copy).
  7. The Clerk of Court will enter the Order of Discharge onto your official Georgia criminal history record and the record of the case will be sealed from your GCIC criminal history record for most employers.
  8. Obtain a copy of your GCIC criminal history record to make sure the First Offender case no longer appears on your report. (NOTE: Law enforcement and certain employers can still see the charge.)

How to Seal My Discharged First Offender Case on My GCIC Criminal History Record

While you are under sentence, your First Offender case will show up on your official criminal history report. If your First Offender status was revoked and you were convicted, the conviction will appear permanently on your record. If you successfully completed your First Offender sentence and the arrest and charges still appear on your official report, follow these steps:

  1. Go to the Clerk of Court in the county where you were sentenced and ask for a copy of the final disposition and Order of Discharge in your case.
  2. If an Order of Discharge is in the file, ask the clerk to enter it on your official criminal history report kept by GCIC.
  3. If an Order of Discharge is not in the file, contact your probation officer and ask him/her to request the order.
  4. If your case was resolved a long time ago and/or you can’t contact your probation officer, ask to speak to the supervisor of your probation office.
  5. The probation office should complete the order and send it to the judge, and it will then be filed at the clerk of court and entered into GCIC.
  6. If the clerk does not enter your Order of Discharge, you can mail it, along with a certified copy of the disposition in your case, to GCIC at 3121 Panthersville Road in Decatur so that the record can be corrected. Be sure to include your date of birth on the request to GCIC so that they can identify the appropriate record.

NOTE: If you are convicted of a crime while you are under sentence for a First Offender case, GCIC is required by law to enter a revocation on your criminal history. This does not necessarily mean you were actually revoked. Only a judge may officially revoke your First Offender status. Once an Order of Discharge is entered, GCIC will correct the record.