CopyCited 64 times | Published | Supreme Court of Georgia | Nov 1, 1999 | 271 Ga. 587, 99 Fulton County D. Rep. 3949
...sentenced to a mandatory term of imprisonment of not less than ten years. Ga. L.1998, p. 180, § 1. Consequently, the legislature amended OCGA §
17-10-6.1(b), [2] effective March 27, 1998, and enacted a new provision in 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 §
17-10-6.1(a) is not eligible for first offender treatment under OCGA §
42-8-60....
...The State of Georgia shall have the right to appeal any sentence which is imposed by the superior court which does not conform to the provisions of this subsection in the same manner as is provided for other appeals by the state in accordance with Chapter 7 of Title 5, relating to appeals or certiorari by the state. [3] OCGA §
42-8-66 provides: The provisions of this article shall not apply to any person who is convicted of a serious violent felony as defined in subsection (a) of Code Section
17-10-6.1.
CopyCited 4 times | Published | Supreme Court of Georgia | Sep 13, 2017 | 805 S.E.2d 25
...In July 2016, White filed a pro se “Petition for Resentencing Under the First Offenders Act.” She now appeals from the trial court’s denial of that motion. We affirm.
1. White argues on appeal that she was eligible for first offender treatment pursuant to OCGA §
42-8-66, which provides for the retroactive exoneration of guilt and discharge under certain circumstances. 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....
...The trial court therefore did not err in denying her petition.1
2. White argues further that the trial court erred in failing to hold a hearing on the matter and enter findings of fact and conclusions of law in its order denying her petition. Although OCGA §
42-8-66 (b) requires the trial court to hold a hearing on the petition “if requested by the petitioner or prosecuting attorney or desired by the court,” as explained above, White has not shown that she had the consent of the prosecuting attorney to meet the threshold requirement for petition*70ing to the superior court....
...v. State,
341 Ga. App. 590 (802 SE2d 39) (2017), decided after the time for filing briefs in this case.
Further, we find no authority requiring the trial court to include findings of fact and conclusions of law in an order issued pursuant to OCGA §
42-8-66.
CopyCited 2 times | Published | Supreme Court of Georgia | Apr 8, 2025 | 321 Ga. 352
...Appellant first challenges the trial court’s rejection of his
petition for retroactive first-offender treatment. As explained below,
however, this claim fails.
On October 20, 2022, Appellant filed a petition for retroactive
first-offender treatment under OCGA §
42-8-66, seeking
exoneration and discharge....
...ith the
consent of the defendant, defer further proceedings and:
(1) Place the defendant on probation; or
(2) Sentence the defendant to a term of
confinement.
OCGA §
42-8-60 (a) (1) & (2).
OCGA §
42-8-66 authorizes a court to retroactively treat a
criminal defendant as a first-time offender under certain
circumstances....
...And as relevant here, that statute provides that, for
a defendant to be eligible for retroactive first-offender treatment, the
prosecutor must consent to the defendant petitioning the court for
such relief, and the defendant must also have been eligible for first-
offender treatment when he was sentenced. See OCGA §
42-8-66 (a)
(1) (providing that a person “who qualified for [first-offender]
sentencing . . . 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” for retroactive first-offender treatment
(emphasis supplied)); OCGA §
42-8-66 (d) (providing that the court
may grant retroactive first-offender treatment “if the court finds by
a preponderance of the evidence that the defendant was eligible for
4
sentencing under the terms o...
...secuting attorney . . . did not
consent to the filing of the petition”).
Here, Appellant did not purport to file his petition for
retroactive first-offender treatment “with the consent of the
prosecuting attorney,” as required by OCGA §
42-8-66 (a) (1)....
CopyCited 1 times | Published | Supreme Court of Georgia | Dec 10, 2024 | 320 Ga. 617
...on”).
consecutive years.
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-
—————————————————————
2 The current version of this statute provides:
(a) (1) An individual who qualified for sentencin...
...was eligible for first-offender treatment in 1992. In conjunction with
his petition, Sumrall filed a document entitled “Affidavit of Ammon
Ra Sumrall,” which was neither signed nor notarized. Additionally,
Sumrall filed a motion requesting that the trial court declare OCGA
§
42-8-66 (a) (1) unconstitutional, arguing that this provision of the
statute restricts his “access to the courts” and violates “his right to
—————————————————————
soci...
...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.
OCGA §
42-8-66.
3
prosecute and defend his own cause” under the Georgia and United
States Constitutions.
On February 6, 2024, the trial court entered an order
dismissing Sumrall’s petition for...
...er. In the amended
order, the trial court dismissed Sumrall’s petition for retroactive
first-offender treatment for his failure to procure “the necessary
consent of the prosecuting attorney” prior to filing the petition as
required by OCGA §
42-8-66 (a) (1). The trial court also denied
Sumrall’s motion to declare OCGA §
42-8-66 unconstitutional,
concluding that Sumrall “failed to meet his burden to show that
there is a clear and palpable conflict between [OCGA §
42-8-66] and
the Georgia Constitution” and that Sumrall’s “vague allegation that
the code section violates the United States Constitution” had no
4
supporting argument or legal authority, other than...
...But we need
not decide in this case whether, at the time of Sumrall’s felony
murder conviction, he could have been sentenced as a first offender
under the 1992 version of OCGA §
42-8-60 because, even if he could
have been sentenced pursuant to that statute at that time, he has
failed to meet the requirements of OCGA §
42-8-66 (a) (1) for the
trial court to now consider retroactive first-offender treatment in his
case.
OCGA §
42-8-66 provides in pertinent part:
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.
OCGA §
42-8-66 (a) (1) (emphasis supplied)....
...On appeal, Sumrall
contends that, in 2023, his mother attempted to contact the DeKalb
County District Attorney’s Office on numerous occasions to obtain
7
the District Attorney’s (“DA”) consent for Sumrall to file a petition
for retroactive first-offender treatment under OCGA §
42-8-66 (a)
(1), but his mother was unsuccessful in doing so....
...petition for
retroactive first-offender treatment through the DA’s inaction, and
thus, the trial court erred in dismissing Sumrall’s petition on the
grounds that he did not have the necessary consent from the
prosecuting attorney under OCGA §
42-8-66 (a) (1)....
...ssentially concedes
in his briefing — that neither he nor any attorney appearing on his
behalf obtained the DA’s consent to his petition for retroactive first-
offender treatment prior to filing the petition as the statute requires.
See OCGA §
42-8-66 (a) (1)....
...not err in dismissing Sumrall’s petition for retroactive first-offender
treatment. White,
302 Ga. at 69-70 (2). As such, this claim fails.
2. Sumrall also contends on appeal that the trial court erred in
denying his motion to declare OCGA §
42-8-66 (a) (1)
unconstitutional under the Georgia and United States
Constitutions. We disagree.
In addressing the constitutionality of OCGA §
42-8-66 (a) (1),
we recognize that
every reasonable construction must be resorted to in order
to save a statute from unconstitutionality....
...tatutory text in its
most natural and reasonable way, as an ordinary speaker of the
English language would.” Bell v. Hargrove,
313 Ga. 30, 32 (2) (867
SE2d 101) (2021) (citation and punctuation omitted).
(a) Sumrall first argues that OCGA §
42-8-66 (a) (1) is
unconstitutional because the statute purportedly restricts his access
to the courts and his right to prosecute and defend his case for first-
offender treatment under the Georgia Constitution....
...the right of an inmate to raise his claims and be heard.” Gibson v.
Turpin,
270 Ga. 855, 858 (1) (513 SE2d 186) (1999). Sumrall had the
right and opportunity to raise his claims and be heard; he simply
failed to comply with the plain language of OCGA §
42-8-66 (a) (1)
in presenting his claim for retroactive first-offender treatment and
failed to “meet the threshold requirement for petitioning to the
superior court.” White, 302 Ga....
...case, and the record reflects that Sumrall was not heard on his
petition for this very reason. As was in the trial court’s discretion,
the trial court determined that, because Sumrall did not comply
with the threshold consent requirement of OCGA §
42-8-66 (a) (1),
no hearing was necessary. And this Court has held that the trial
court is “not required to hold a hearing on the petition in this
circumstance.” White,
302 Ga. at 70 (2). See also OCGA §
42-8-66 (b).
Given that Article I, Section I, Paragraph XII of the Georgia
Constitution does not afford a right of access to the courts and
Sumrall has not established that any other provision of the Georgia
Constitution affords such a right,...
...Constitution fails. See Smith,
287 Ga. at 24-25 (1) (noting that “no
express constitutional ‘right of access to the courts’” exists “under
the Georgia Constitution”) (citation and punctuation omitted).
(b) Sumrall also argues that OCGA §
42-8-66 (a) (1) violates his
13
First Amendment right to be heard and right of access to the courts
under the United States Constitution. Notably, in Sumrall’s motion
to declare OCGA §
42-8-66 (a) (1) unconstitutional, he did not
expound upon this argument, and the trial court denied Sumrall’s
motion on this basis, concluding that his allegations were “vague”
and lacked any “argument in support” thereof “other than [a] cite to
the First Amendment” and an unrelated case....
...deprivation of a constitutional right of access to courts must allege
both an underlying cause of action, whether anticipated or lost, and
14
official acts frustrating litigation).
Therefore, because Sumrall has failed to prove that OCGA §
42-8-66 (a) (1) is unconstitutional under either the Georgia
Constitution or the United States Constitution, see Barnhill,
315
Ga. at 311 (2) (b), we conclude that the trial court properly denied
Sumrall’s motion to declare OCGA §
42-8-66 (a) (1) unconstitutional.
Judgment affirmed....
