O.C.G.A. § 42-8-44 (2019)

Annotations

Editor’s notes. Ga. L. 2015, p. 422, § 4-1/HB 310, effective July 1, 2015, redesignated former Code Section 42-8-44 as present Code Section 42-8-43.

Law reviews. For article on the 2015 amendment of this Code section, see 32 Ga. St. U.L. Rev. 231 (2015).

ARTICLE 3 FIRST OFFENDERS Law reviews. For note, “Bailing on Bail: The Unconstitutionality of Fixed, Monetary Bail Systems and Their Continued Use Throughout the United States,” see 52 Ga. L. Rev. 985 (2018).

For article, “The Meaning of a Misdemeanor in a Post-Ferguson World: Evaluating the Reliability of Prior Conviction Evidence,” see 54 Ga. L. Rev. 927 (2020).

JUDICIAL DECISIONS Applicability. - O.C.G.A. Art. 3, Ch. 8, T. 42 does not apply to the sentence for violent felonies outlined in O.C.G.A. § 1710-6.1. Fleming v. State, 233 Ga. App. 483, 504 S.E.2d 542 (1998) (overruling State v. Allmond, 225 Ga. App. 509. 484 S.E.2d 306 (1997). Defendant found guilty of a serious violent felony under O.C.G.A. § 17-10-6.1 could apply for first offender status prior to the 1998 amendments to O.C.G.A. Art. 3, Ch. 8, T. 42. Fleming v. State, 271 Ga. 587, 523 S.E.2d 315 (1999), reversing Fleming v. State, 233 Ga. App. 483, 504 S.E.2d 542, 1998 Ga. App. LEXIS 1014 (1998); Horton v. State, 241 Ga. App. 605, 527 S.E.2d 254, 1999 Ga. App. LEXIS 1681 (1999) (reversing Fleming v. State, 233 Ga. App. 483, 504 S.E.2d 542, 1998 Ga. App. LEXIS 1014 (1998)). Terms and conditions. - Probation cannot be revoked for a violation of terms and conditions if there are no terms and conditions to the probation. Helton v. State, 166 Ga. App. 565, 305 S.E.2d 27, 1983 Ga. App. LEXIS 2251 (1983). Carryover to subsequent probation. - When a first offender probation is

revoked, that probation, and the probation’s terms and conditions, is effectively eliminated, leaving nothing to be carried over to any subsequent probation. Helton v. State, 166 Ga. App. 565, 305 S.E.2d 27, 1983 Ga. App. LEXIS 2251 (1983). Sentence admissible in murder trial. - At the sentencing phase of a murder trial, the state offered in aggravation an indictment, the defendant’s plea of guilty to the indictment, and a sentence imposed under O.C.G.A. Art. 3, Ch. 8, T. 42 for the offenses of entering an automobile and theft by taking. This evidence was admissible, since evidence in aggravation is not limited to convictions, and reliable information tending to show a defendant’s general bad character is admissible in aggravation. Williams v. State, 258 Ga. 281, 368 S.E.2d 742, 1988 Ga. LEXIS 276 (1988), cert. denied, 492 U.S. 925, 109 S. Ct. 3261, 106 L. Ed. 2d 606, 1989 U.S. LEXIS 3313 (1989).

OPINIONS OF THE ATTORNEY GENERAL Applicability to misdemeanors. - First Offender Act, O.C.G.A. § 42-8-60 et

seq., is applicable to misdemeanor offenses. 2000 Op. Att’y Gen. No. 2000-1.

Competency to serve on jury. - Person who has been placed on probation pursuant to the First Offender Act, O.C.G.A. § 42-8-60 et seq., does not become incompetent to serve on a grand or petit jury under Code Section 15-12-60 either before or after being discharged without court adjudication of guilt. 1990 Op. Att’y Gen. No. U90-6.

“Conviction”, as defined in the DrugFree Public Work Force Act of 1990, O.C.G.A. § 45-23-3, does not include treatment under the Georgia First Offender Act, O.C.G.A. § 42-8-60 et seq., nor does it include a conviction based on a plea of nolo contendere. 1990 Op. Att’y Gen. No. 90-16.