What is First Offender? What is Conditional Discharge? Georgia has three useful pieces of law that shield you from a conviction. Everyone has a right to use them, but only once, and it is important to use them in a strategic order. While I have listed them in order of size and scope, it is important that you talk with an experienced criminal defense lawyer to know exactly how best to use them in your situation.
***WARNING: If you have immigration concerns, please contact an experienced criminal defense attorney like Adam. These specific laws will likely not get you the desired outcome that you want, and your case will need to be fought from a different avenue. Make sure to consult an attorney! Your attorney has a Sixth Amendment constitutional duty to determine if these options will help or hurt you for immigration purposes.***
The Large Umbrella: First Offender Act
What: The First Offender Act, found at OCGA § 42-8-60, separates a judge’s sentence from the actual conviction. If you plead guilty, or are found guilty by a jury, the judge can sentence you but hold back on actually finding you guilty (called withholding of adjudication). Once you complete the terms of the sentence, the case is “disposed of” (read: tossed in the trash) without a conviction, and you are “discharged” from the first offender act sentence. After you are discharged, you are legally able to state that you have NOT been convicted of that crime. With such a great benefit, there is naturally some risk involved. If you goof up during the course of your first offender sentence, the judge has the option to revoke you first offender status (you are then “guilty” of the crime), AND resentence you to the maximum time allowed in prison.
Who is eligible for First Offender: Anyone who has not previously been convicted of a felony. Available for most crimes (felony and misdemeanor), except for certain crimes like serious violent felonies, sex offenses, and DUI.
Typical Strategy: Save your first offender card. As it is the biggest umbrella, it can often be used even after the other umbrellas (below) have been used.
The Medium Umbrella: Conditional Discharge
What: Conditional Discharge, under OCGA § 16-13-2(a), is similar in effect to the First Offender Act. However, it is only available for drug offenses, and minor property crimes related to drug use (think, pawning stolen goods to get money to buy drugs). The maximum allowed conditional discharge sentence length is five years. Your typical simple VGCSA possession of drugs charge (meth, cocaine, heroin, etc) is a three-year sentence, meaning they often qualify for conditional discharge status. Also, the typical theft by taking or theft by receiving charge is a five-year maximum sentence, and often qualify so long as a sufficient link to drug use can be shows.
Who: Anyone who has not previously been convicted of a drug crime.
Typical Strategy: Conditional Discharge is typically used before any First Offender Act. There may be strategic reasons to do things differently in your case, and you should consult an attorney before using any of your options.
The Small Umbrella: Underage Possession of Alcohol
What: Similar to the above two, this option is often referred to as “underage possession conditional discharge,” although you won’t see that title in the statute. It allows someone to be given a sentence for underage possession of alcohol, and upon completion of the terms of the sentence the case will be disposed of without a conviction being entered on the person’s record.
Who: First-time offenders of underage possession of alcohol may use this option. If you are a second-time offender, you may consider using the conditional discharge option, discussed above—but speak to an attorney first to see if that is the best use of conditional discharge for you.