TITLE 42 PENAL INSTITUTIONS

Section 8. Probation, 42-8-1 through 42-8-159.

ARTICLE 3 FIRST OFFENDERS

42-8-65. Use of prior finding of guilt in subsequent prosecutions; modification of records.

If otherwise allowable by law, in a subsequent prosecution of the defendant for another offense, when a defendant has not been exonerated of guilt and discharged, the prior finding of guilt may be pleaded and proven as if an adjudication of guilt had been entered and relief had not been granted pursuant to this article.
The records of the Georgia Crime Information Center showing treatment as a first offender shall be modified only when a court of competent jurisdiction enters:
1. An adjudication of guilt for the offense for which the offender has been sentenced as a first offender;
2. An order modifying the sentence originally imposed; or
3. An order correcting an exoneration of guilt and discharge entered pursuant to subsection (g) of Code Section 42-8-60.
1. Any individual who is sentenced pursuant to subsection (a) or (k) of Code Section 42-8-60 shall not be deemed to have been convicted during such sentence, and records thereof shall only be disseminated by the Georgia Crime Information Center:
  1. To criminal justice agencies, as such term is defined in Code Section 35-3-30;
  2. As authorized by subsection (c) of Code Section 35-3-37; and
  3. As authorized by subparagraph (a)(1)(B) of Code Sections 35-3-34 and 35-3-35.
2. If a court of competent jurisdiction adjudicates the defendant guilty while such defendant is serving a first offender sentence, such records may be disseminated by the Georgia Crime Information Center as provided in Code Sections 35-3-34 and 35-3-35.

(Ga. L. 1968, p. 324, § 4; Ga. L. 1978, p. 1621, § 3; Ga. L. 1982, p. 1807, § 4; Ga. L. 1983, p. 3, § 31; Ga. L. 1985, p. 283, § 1; Ga. L. 1985, p. 380, § 2; Ga. L. 1990, p. 735, § 2; Ga. L. 1994, p. 97, § 42; Ga. L. 2016, p. 443, § 6A-1/SB 367.)

The 2016 amendment, effective July 1, 2016, rewrote this Code section.

Code Commission notes.

- Ga. L. 1985, p. 380 cited "Code Section 40-8-60" in present subsection (c). Pursuant to Code Section 28-9-5, this has been changed to "Code Section 42-8-60."

Editor's notes.

- Ga. L. 1985, p. 380, § 3, not codified by the General Assembly, provided as follows: "Subsection (d) [now subsection (c)] of Code Section 42-8-65 of the Official Code of Georgia Annotated enacted by Section 2 of this Act shall be repealed upon the ratification of an amendment to the Constitution extending the jurisdiction of the State Board of Pardons and Paroles to consider cases covered by Code Section 42-8-60." As of May 1, 2018, no vote had been taken on such a constitutional amendment.

Ga. L. 1985, p. 380, § 3, as amended by Ga. L. 2018, p. 550, § 2-19/SB 407, provides: "This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval." Ga. L. 1985, p. 380 was signed by the Governor and became law on March 20, 1985.

Law reviews.

- For article on the 2016 amendment of this Code section, see 33 Ga. St. U. L. Rev. 139 (2016).

JUDICIAL DECISIONS

Evidence found based on DNA match did not violate Fourth Amendment.

- Evidence produced after a comparison of DNA from a robbery scene to a Georgia Bureau of Investigation database did not violate the defendant's Fourth Amendment rights because the sample was taken pursuant to O.C.G.A. §§ 35-3-160(b) and35-3-165(b), while the defendant was serving a sentence under Georgia's First Offender Act, O.C.G.A. § 42-8-60, and the match was made when the defendant was on probation with a reduced expectation of privacy. United States v. Hinton, 676 Fed. Appx. 842 (11th Cir. 2017)(Unpublished).

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