O.C.G.A.

O.C.G.A. § 42-8-64 (2019)

Appeal of sentence imposed under article

✓ O.C.G.A. — 2019 edition (Public.Resource.Org Release 73)

Code text and O.C.G.A. statutory annotations on this page reflect the 2019 Official Code of Georgia Annotated (Public.Resource.Org Release 73, 2019-08-21; public domain per Georgia v. Public.Resource.Org, 2020). The Syfert case-law annotations in Notes of Decisions, below, are current.

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A defendant sentenced pursuant to this article shall have the right to appeal in the same manner and with the same scope and same effect as if a judgment of conviction had been entered and appealed from.

History

Ga. L. 1968, p. 324, § 5; Ga. L. 2016, p. 443, § 6A-1/SB 367.

Annotations

Law reviews. For article on the 2016 amendment of

this Code section, see 33 Ga. St. U. L. Rev. 139 (2016).

JUDICIAL DECISIONS Need written order or judgment. - Court of Appeals lacks jurisdiction to entertain an appeal under O.C.G.A. § 5-634(a) from a conviction upon imposition of first-offender status absent a written trial court order imposing first offender status upon the defendant or a written judgment of conviction and sentence. Littlejohn v.

State, 185 Ga. App. 31, 363 S.E.2d 327, 1987 Ga. App. LEXIS 2445 (1987). Denial of exoneration and discharge was void. - Trial court’s 1998 sentencing order denying the defendant exoneration and discharge was void as a matter of law because the state never filed a motion for revocation; thus, exoneration

and discharge was automatic under the First Offender Act, O.C.G.A. § 42-8-60(e), (g), and (h), and the defendant’s motion to correct the void sentence was improperly denied. Collins v. State, 338 Ga. App. 886, 792 S.E.2d 134, 2016 Ga. App. LEXIS 562 (2016). Direct appeal from conviction. - Section provides defendant direct appeal from conviction upon imposition of firstoffender status, notwithstanding the absence of a formal and final “adjudication of guilt.” Dean v. State, 177 Ga. App. 123, 338 S.E.2d 711, 1985 Ga. App. LEXIS 2942 (1985). Appeal from revocation of probationary status granted under First Offender Act. - Appeal from adjudication of guilt and sentence serving to revoke probationary status granted under

the First Offender Act, O.C.G.A. § 42-8-60 et seq., is by discretionary appeal, as provided in O.C.G.A. § 5-6-35(a)(5), rather than direct appeal. Dean v. State, 177 Ga. App. 123, 338 S.E.2d 711, 1985 Ga. App. LEXIS 2942 (1985); Anderson v. State, 177 Ga. App. 130, 338 S.E.2d 716, 1985 Ga. App. LEXIS 2941 (1985). Failure to appeal accepted sentence. - Since the defendant was apparently satisfied with the defendant’s sentence at time the sentence was entered as the defendant did not appeal from the sentence as was the defendant’s right, and the defendant also readily accepted the benefits of first offender treatment and probation, the defendant will not be heard to complain that the fine was excessive. Brainard v. State, 246 Ga. 586, 272 S.E.2d 683, 1980 Ga. LEXIS 1211 (1980).

RESEARCH REFERENCES Am. Jur. 2d. 21 Am. Jur. 2d, Criminal Law, §§ 526536. 59 Am. Jur. 2d, Pardon and Parole, § 42. C.J.S. 24 C.J.S., Criminal Law, §§ 2144-2161.

ALR. Acceptance of probation, parole, or suspension of sentence as waiver of error or right to appeal or to move for new trial, 117 A.L.R. 929.

Notes of Decisions

Cited in 7 cases (1 in the last 5 years), 1985–2024 · leading case: Howard v. State, 902 S.E.2d 551 (Ga. 2024).

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Howard v. State, 902 S.E.2d 551 (Ga. 2024). · cites it 24× “But OCGA § 42-8-64 provides an avenue of immediate appeal to a defendant sentenced as a first offender.”

Dean v. State, 338 S.E.2d 711 (Ga. Ct. App. 1985). · cites it 20× “OCGA § 42-8-64 provides: "A defendant sentenced pursuant to this article shall have the right to appeal in the same manner and with the same scope and same effect as if a judgment of conviction had been entered and appealed from.”

Collins v. the State, 792 S.E.2d 134 (Ga. Ct. App. 2016). · cites it 6× “Compare OCGA § 42-8-64; Hawkins v. State, 330 Ga.”

Higdon v. State, 733 S.E.2d 750 (Ga. 2012). · cites it 2× “31, 31 ( 363 SE2d 327 ) (1987) (explaining that a defendant may appeal his first offender disposition under OCGA § 42-8-64 only after the trial court enters a written judgment imposing first offender status).”

Littlejohn v. State, 363 S.E.2d 327 (Ga. Ct. App. 1987). · cites it 2× ““[I]t is clear that OCGA § 42-8-64 is intended to provide a defendant a direct appeal from his conviction upon the imposition of first-offender status (a ‘sentence’ if you will), notwithstanding the absence of a formal and final ‘adjudication of guilt.”

Smith v. State, 424 S.E.2d 60 (Ga. Ct. App. 1992). · cites it 2× “Smith was sentenced under the provisions of the First Offender Statute, OCGA § 42-8-64, which is a final, appealable order or judgment.”

Ardeneaux v. State, 484 S.E.2d 74 (Ga. Ct. App. 1997). · cites it 2× “586 ( 272 SE2d 683 ) (1980) (“Defendant was apparently satisfied with his sentence at the time it was entered as he did not appeal from it as was his right under [OCGA § 42-8-64], . . . This being so, he will not be heard to complain at this late date that the fine was excessive.”

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