O.C.G.A.
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.
(a) 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.
(b) 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.
(c)(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: (A) To criminal justice agencies, as such term is defined in Code Section 35-3-30;
(B) As authorized by subsection (c) of Code Section 35-3-37; and
(C) 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.
History
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.
Annotations
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. Administrative rules and regulations. Criminal Justice Information Exchange and Dissemination, Official Compilation of the Rules and Regulations of the State of Georgia, Georgia Crime Information Center Council, Practice and Procedure, Rule 140-2-.04. 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. - Unpublished decision: 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) and 35-3-165(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, 2017 U.S. App. LEXIS 828 (11th Cir. 2017).
Notes of Decisions
State v. Sparks, 271 So. 3d 308 (La. Ct. App. 2019).
“" Ga. Code Ann. § 42-8-65 (c)(1). In Davis , the Georgia Supreme Court examined the statutory scheme of Georgia's First Offender Act to determine whether a defendant on first offender probation who had not been discharged or revoked could be sentenced as a recidivist after a…”
State v. Sparks, 271 So. 3d 308 (La. Ct. App. 2019).
“" Ga. Code Ann. § 42-8-65 (c)(1). In Davis , the Georgia Supreme Court examined the statutory scheme of Georgia's First Offender Act to determine whether a defendant on first offender probation who had not been discharged or revoked could be sentenced as a recidivist after a…”
Bennett v. The State., 816 S.E.2d 323 (Ga. Ct. App. 2018).
· cites it 8× “OCGA § 42-8-65 (c) (2013). (The current version of the statute does not deem a person serving a first offender's sentence to be "convicted.”
United States v. Frederick Fitzgerald Hinton, 676 F. App'x 842 (11th Cir. 2017).
· cites it 2× “Under the 2015 version of O.C.G.A. § 42-8-65(c), any person sentenced to a term of confinement under the FOA shall be deemed to have been convicted of the offense during their term of confinement.”
Denzel Bennett v. State (Ga. Ct. App. 2017).
· cites it 2× “In this case, the appellant challenges the constitutionality of OCGA § 42-8-65 (c). Accordingly, “it is ordered that this case be transferred to the Supreme Court since it is one in which the constitutionality of a law has been drawn into question.”
United States v. Hinton, 113 F. Supp. 3d 1277 (N.D. Ga. 2015).
· cites it 10× “” O.C.G.A. § 42-8-65(c). “Upon completion of the confinement sentence, such person shall be treated in the same manner and the procedures to be followed by the court shall be the same as in the case of a person placed on probation under this article.”
Mason v. State, 712 S.E.2d 76 (Ga. Ct. App. 2011).
· cites it 12× “Pretermitting whether the argument was required to be raised and ruled upon below, 11 however, we find it without merit because the argument overlooks another provision of the First Offender Act, OCGA § 42-8-65 (c). Pursuant thereto, persons who have been sentenced to a term of…”
Lee v. State, 670 S.E.2d 488 (Ga. Ct. App. 2008).
· cites it 4× “But the modification of Lee’s first offender status by the GCIC, while authorized by OCGA § 42-8-65, 2 did not amount to a conviction.”
Headspeth v. State, 597 S.E.2d 503 (Ga. Ct. App. 2004).
· cites it 2× “” One of the three prior felony convictions introduced against Headspeth to support such recidivist sentencing was a first offender sentence pursuant to OCGA § 42-8-65. However, it is undisputed that, at the time of sentencing in this case, the period of probation imposed under…”
Davis v. State, 537 S.E.2d 663 (Ga. 2000).
· cites it 2× “* The State notes that OCGA § 42-8-65 (b) provides that “[t]he records of the Georgia Crime Information Center shall be modified, without a court order, to show a conviction in lieu of treatment as a first offender under this article whenever the conviction of a person for…”
McKinney v. State, 525 S.E.2d 395 (Ga. Ct. App. 1999).
· cites it 6× “In May 1998, the Georgia Bureau of Investigation’s Georgia Crime Information Center notified the Gwinnett County Superior Court that in accordance with OCGA § 42-8-65 (b), McKinney’s record had been changed from first offender treatment to a conviction on the original offense of…”
State v. Allmond, 484 S.E.2d 306 (Ga. Ct. App. 1997).
· cites it 6× “Under OCGA § 42-8-65 (c), a person sentenced to a term of confinement as a first offender is deemed to have been convicted of the offense during the term of the confinement.”
— 42-8-65(a) — 1 case
— 42-8-65(c) — 2 cases
United States v. Frederick Fitzgerald Hinton, 676 F. App'x 842 (11th Cir. 2017).
“Under the 2015 version of O.C.G.A. § 42-8-65(c), any person sentenced to a term of confinement under the FOA shall be deemed to have been convicted of the offense during their term of confinement.”
United States v. Hinton, 113 F. Supp. 3d 1277 (N.D. Ga. 2015).
“” O.C.G.A. § 42-8-65(c). “Upon completion of the confinement sentence, such person shall be treated in the same manner and the procedures to be followed by the court shall be the same as in the case of a person placed on probation under this article.”
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