O.C.G.A.

O.C.G.A. § 42-8-66 (2019)

Petition for exoneration and discharge; hearing; retroactive grant of first offender status; no filing fee

✓ 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.

Find cases: SyfertCases citing this section GA-LEGlegis.ga.gov (official) JustiaJustia CornellLII Search CasesGoogle Scholar

(a)(1) An individual who qualified for sentencing pursuant to this article but who was not informed of his or her eligibility for first offender treatment may, with the consent of the prosecuting attorney, petition the court in which he or she was convicted for exoneration of guilt and discharge pursuant to this article. (2) An individual who was sentenced between March 18, 1968, and October 31, 1982, to a period of incarceration not exceeding one year but who would otherwise have qualified for sentencing pursuant to this article may, with the consent of the prosecuting attorney, petition the court in which he or she was convicted for exoneration of guilt and discharge pursuant to this article. (b) The court shall hold a hearing on the petition if requested by the petitioner or prosecuting attorney or desired by the court. (c) In considering a petition pursuant to this Code section, the court may consider any: (1) Evidence introduced by the petitioner; (2) Evidence introduced by the prosecuting attorney; and (3) Other relevant evidence. (d) The court may issue an order retroactively granting first offender treatment and discharge the defendant pursuant to this article if the court finds by a preponderance of the evidence that the defendant was eligible for sentencing under the terms of this article at the time he or she was originally sentenced or that he or she qualifies for sentencing under paragraph (2) of subsection (a) of this Code section and the ends of justice and the welfare of society are served by granting such petition. (e) The court shall send a copy of any order issued pursuant to this Code section to the petitioner, the prosecuting attorney, the Georgia Crime Information Center, and the Department of Driver Services. The Georgia Crime Information Center and the Department of Driver Services shall modify their records accordingly. (f) This Code section shall not apply to a sentence that may be modified pursuant to subsection (f) of Code Section 17-10-1. (g) This Code section shall apply to any sentence entered on or after March 18, 1968. (h) There shall be no filing fee charged for a petition filed pursuant to this Code section.

History

Code 1981, § 42-8-66, enacted by Ga. L. 1998, p. 180, § 3; Ga. L. 2015, p. 422, § 5-75/HB 310; Ga. L. 2016, p. 443, § 6A1/SB 367; Ga. L. 2017, p. 566, § 1/HB 261; Ga. L. 2018, p. 550, § 2-15/SB 407.

Annotations

Editor’s notes. Ga. L. 1998, p. 180, § 1, not codified by the General Assembly, provides: “The General Assembly declares and finds: (1) That the ‘Sentence Reform Act of 1994,’ approved April 20, 1994 (Ga. L. 1994, p. 1959), provided that persons convicted of one of seven serious violent felonies shall serve minimum mandatory terms of imprisonment which shall not otherwise be suspended, stayed, probated, deferred, or withheld by the sentencing court; (2) That in State v. Allmond, 225 Ga. App. 509 (1997), the Georgia Court of Appeals held, notwithstanding the ‘Sentence Reform Act of 1994,’ that the provisions of the First Offender Act would still be available to the sentencing court, which would mean that a person who committed a serious violent felony could be sentenced to less than the minimum mandatory ten-year sentence; and (3) That, contrary to the decision in State v. Allmond, it is the expressed intent of the General Assembly that persons who

commit a serious violent felony specified in the ‘Sentence Reform Act of 1994’ shall be sentenced to a mandatory term of imprisonment of not less than ten years and shall not be eligible for first offender treatment.” Ga. L. 2015, p. 422, § 5-73/HB310, not codified by the General Assembly, provides: “This Act shall become effective July 1, 2015, and shall apply to sentences entered on or after such date.” Law reviews. For review of 1998 legislation relating to penal institutions, see 15 Ga. St. U. L. Rev. 197 (1998). For note, “Can’t Do the Time, Don’t Do the Crime?: Dixon v. State, Statutory Construction, and the Harsh Realities of Mandatory Minimum Sentencing in Georgia,” see 22 Ga. St. U. L. Rev. 519 (2005). For article on the 2015 amendment of this Code section, see 32 Ga. St. U.L. Rev. 231 (2015). For article on the 2016 amendment of this Code section, see 33 Ga. St. U. L. Rev. 139 (2016). For annual survey on criminal law, see 69 Mercer L. Rev. 73 (2017). For article on the 2018 amendment of this Code section, see 35 Ga. St. U. L. Rev. 45 (2018).

JUDICIAL DECISIONS Applicability to offenses committed before 1998. - Since the serious violent felonies committed by defendant occurred prior to the March 29, 1998, amendment to O.C.G.A. § 17-10-6.1 and the enactment of O.C.G.A. § 42-8-66, then the prohibition of § 42-8-66 had no retroactive application to the defendant to limit the discretion of the trial judge in the sentence to impose. Camaron v. State, 246 Ga. App. 80, 539 S.E.2d 577, 2000 Ga. App. LEXIS 1156 (2000). Subsection (d) not retroactive. - Because, by its own terms, O.C.G.A. § 428-66(d), applied only to sentences entered on or after July 1, 2015, the petition for retroactive application of first offender treatment was not available to the defendant, whose sentence was imposed before that date. Bishop v. State, 341 Ga. App. 590, 802 S.E.2d 39, 2017 Ga. App. LEXIS 251 (2017).

Recidivist sentence not void. - Defendant’s motion to correct a void sentence should have been dismissed as the defendant failed to present a cognizable claim that the defendant’s sentence was void because there was no dispute that the recidivist sentence issued to the defendant fell within the statutory range of permissible punishment at the time it was imposed; and nothing in O.C.G.A. § 42-866(g) mandated the retroactive nullification of an otherwise lawfully imposed recidivist sentence. McCullum v. State, 365 Ga. App. 310, 878 S.E.2d 260, 2022 Ga. App. LEXIS 436 (2022). Sentences for violent felonies. - The First Offender Act, O.C.G.A. § 428-60 et seq., does not apply to the sentences for violent felonies outlined in O.C.G.A. § 17-10-6.1. Fleming v. State, 233 Ga. App. 483, 504 S.E.2d 542 (overruling State v. Allmond, 225 Ga. App. 509,

484 S.E.2d 306, 1997 Ga. App. LEXIS 431 (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 and § 42-8-66. Fleming v. State, 271 Ga. 587, 523 S.E.2d 315 (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)).

There was no error in the trial court’s failure to convict the defendant of kidnapping and armed robbery, in violation of O.C.G.A. §§ 16-5-40 and 16-8-41, respectively, under the First Offender Act, as O.C.G.A. § 42-8-66 specifically stated that the Act did not apply to the sentences for violent felonies outlined in O.C.G.A. § 17-10-6.1, and those two crimes were listed as serious violent felonies. Isaac v. State, 275 Ga. App. 254, 620 S.E.2d 483, 2005 Ga. App. LEXIS 942 (2005).

ARTICLE 4 PARTICIPATION OF PROBATIONERS IN COMMUNITY SERVICE PROGRAMS 42-8-70 through 42-8-74. [Reserved]. History. Ga. L. 1982, p. 1257, §§ 1-5; Code 1981, § 42-8-70 through 42-8-74, enacted by Ga. L. 1982, p. 1257, § 6; Ga. L. 1983, p. 1593, § 2; Ga. L. 1983, p. 3, § 31; Ga. L. 1983, p. 1593, §§ 1, 3; Ga. L. 1984, p. 367, § 1; Ga. L. 1989, p. 331, § 1; Ga. L. 1991, p. 1302, § 1; Ga. L. 1984, p. 592, § 1; Ga. L. 1995, p. 396, § 1; Ga. L. 2004, p. 775, § 6; repealed by Ga. L. 2015, p. 422, § 572/HB 310, effective July 1, 2015.

Editor’s notes. Ga. L. 2015, p. 422, § 6-1/HB 310, not codified by the General Assembly, provides that: “This Act shall become effective July 1, 2015, and shall apply to sentences entered on or after such date.” Law reviews. For article on the 2015 repeal of this Code section, see 32 Ga. St. U. L. Rev. 231 (2015).

ARTICLE 5 PRETRIAL RELEASE AND DIVERSION PROGRAMS RESEARCH REFERENCES Am. Jur. 2d. 21A Am. Jur. 2d, Criminal Law, § 839 et seq.

C.J.S. 72 C.J.S., Prisons and Rights of Prisoners, § 113 et seq.

42-8-80 through 42-8-84. [Reserved]. History. Code 1981, § 42-8-80 through 42-8-83, enacted by Ga. L. 1984, p. 367, § 2; Ga. L. 1985, p. 283, § 1; Ga. L. 1985, p. 708, § 17; Ga. L. 1996, p. 748, § 23; Ga. L. 2000, p. 1643, § 3-4; Code 1981, § 42-8-

84, enacted by Ga. L. 1985, p. 149, § 42; repealed by Ga. L. 2015, p. 422, § 578/HB 310, effective July 1, 2015. Editor’s notes. Ga. L. 2015, p. 422, § 5-78/HB 310, not codified by the General Assembly, pro-

vides that: “This Act shall become effective July 1, 2015, and shall apply to sentences entered on or after such date.”

ARTICLE 6 COUNTY AND MUNICIPAL PROBATION Cross references. Payments into the Georgia Crime Victims Emergency Fund, § 17151 et seq. Editor’s notes. Ga. L. 2015, p. 422, § 3-1/HB 310, not codified by the General Assembly, provides that: “(a) The General Assembly finds that: “(1) The authorization for county and municipal probation offices and private probation services was enacted to provide cost savings to the state by using state probation services for felony offenders and utilizing county and municipal probation offices and private probation entities which contract with courts for the supervision of misdemeanor and county and city ordinance offenders; “(2) In enacting such legislation, the General Assembly intended to authorize judges to use county and municipal probation offices and private probation services providers to supervise misdemeanor and county and city ordinance offenders in the same manner as the judges of the superior courts use state probation services as a means of supervising felony offenders; “(3) The General Assembly did not intend to restrict the powers of judges to impose, suspend, toll, revoke, or otherwise

manage the probation of misdemeanor and county and city ordinance offenders sentenced in such courts when utilizing county and municipal probation offices and private probation services providers; and “(4) The General Assembly intended that county and municipal probation officers and private probation officers, when acting in performance of their official duties in supervising probationers in accordance with law and the orders of a court, would have the same rights, authority, and protections as state probation supervisors. “(b) It is the intention of the General Assembly to improve the use and provision of probation services by courts for misdemeanor and ordinance violations by enacting this part.” Ga. L. 2015, p. 422, § 6-1/HB 310, not codified by the General Assembly, provides that: “This Act shall become effective July 1, 2015, and shall apply to sentences entered on or after such date.” Administrative rules and regulations. Probation Services, Official Compilation of the Rules and Regulations of the State of Georgia, County and Municipal Probation Advisory Council, Chapter 503-1.

JUDICIAL DECISIONS Electronic monitoring. - Trial court erred in holding that the imposition of electronic monitoring on misdemeanor defendants supervised by private probation

servicing companies was prohibited. Sentinel Offender Services, LLC v. Glover, 296 Ga. 315, 766 S.E.2d 456 (2014).

Notes of Decisions

Cited in 24 cases (7 in the last 5 years), 1998–2025 · leading case: Bishop v. the State, 802 S.E.2d 39 (Ga. Ct. App. 2017).

Sort: Relevance Newest Treatment

Bishop v. the State, 802 S.E.2d 39 (Ga. Ct. App. 2017). · cites it 42× “In 2015, fifteen years after her conviction for possession of cocaine, Danielle Bishop filed a petition for the retroactive grant of first offender status under subsection (d) of OCGA § 42-8-66, a procedure which was added to the statute in 2015 and became effective on July 1,…”

Sumrall v. State, 910 S.E.2d 186 (Ga. 2024). · cites it 78× “More than 30 years after Sumrall’s convictions, he filed a pro se petition in the Superior Court of DeKalb County on October 20, 2023, seeking retroactive first-offender treatment based on the amendment to OCGA § 42-8-66, 2 which allows retroactive first- —————————————————————…”

Fleming v. State, 504 S.E.2d 542 (Ga. Ct. App. 1998). · cites it 16× “1 and added OCGA § 42-8-66 to the First Offender statute, in order to avoid the result reached in State v.”

Mason v. Home Depot U.S.A., Inc., 658 S.E.2d 603 (Ga. 2008). · cites it 4× “Thus, even when characterized as a "suggestion," I would recognize that subsection (f) constitutes an impermissible encroachment on judicial authority. OCGA § 24-9-67.1(f) is not an instance in which the Legislature has exercised its ample power to correct a judicial…”

White v. State, 805 S.E.2d 25 (Ga. 2017). · cites it 8× “OCGA § 42-8-66 (a) sets forth two categories of individuals who may seek a petition in superior court for exoneration of guilt and discharge.”

Fleming v. State, 523 S.E.2d 315 (Ga. 1999). · cites it 4× “1 (b), 2 effective March 27, 1998, and enacted a new provision in *589 the First Offender Act, OCGA § 42-8-66, 3 effective on the same date, to state that a defendant who is convicted of a serious violent felony as defined in OCGA § 17-10-6.”

Ballard v. State, 914 S.E.2d 793 (Ga. 2025). · cites it 18× “OCGA § 42-8-66 authorizes a court to retroactively treat a criminal defendant as a first-time offender under certain circumstances.”

Collins v. the State, 792 S.E.2d 134 (Ga. Ct. App. 2016). · cites it 2× “See OCGA § 42-8-66 (2016). Neither situation is present in this case.”

Shell v. State, 591 S.E.2d 450 (Ga. Ct. App. 2003). · cites it 4× “At the hearing on her motion for new trial, Shell pointed out that because the date of her offense preceded the effective date of the 1998 amendments which added OCGA § 42-8-66* 11 to the First Offender Act, the trial court could have afforded her first offender status.”

Wilcox v. State, 571 S.E.2d 512 (Ga. Ct. App. 2002). · cites it 4× “By adopting a per se rule of refusing to permit first offender treatment in armed robbery cases occurring before the effective dates of OCGA § 42-8-66 and the amendment to OCGA § 17-10-6.”

Williams v. State, 689 S.E.2d 124 (Ga. Ct. App. 2010). · cites it 2× “Pretermitting the question of whether Williams can challenge a refusal to treat him as a first offender as a void sentence, the trial court’s denial of his motion did not constitute an abuse of discretion.”

Andrews v. State, 609 S.E.2d 119 (Ga. Ct. App. 2004). · cites it 2× “See also OCGA § 42-8-66 (providing that the first offender provisions do not apply to persons convicted of a serious violent felony as defined in OCGA § 17-10-6.”

Show all 24 citing cases →

Annotations are extracted automatically from the opinions in the Syfert caselaw corpus and ranked by authority, recency, and treatment. Dots show Syfertize treatment of the citing case itself.