First Offender in Georgia
- Robert Mooradian
- Aug 11
- 8 min read
In eligible cases, Georgia's First Offender Act (O.C.G.A. § 42-8-60) gives people accused of a crime the chance to move forward in life without the stigma of a conviction on their record. However, First Offender also carries with it certain risks one must consider before using it. Read below to learn more about Georgia's First Offender Act including a FAQ at the bottom.
Eligibility for First Offender in Georgia
A person is eligible for First Offender treatment in their case as long as they have never been previously convicted of a felony and they have not used Georgia's First Offender Act before. O.C.G.A. § 42-8-60(a) and (b). However, even when eligible it is always up to the judge whether to allow first offender treatment.
Additionally, while First Offender can be used for most offenses, some of the more serious crimes are ineligible for First Offender treatment even if it's someone's first time in trouble:
"The court shall not sentence a defendant under the provisions of this article [First Offender Act] who has been found guilty of or entered a plea of guilty or a plea of nolo contendere for:
(1) A serious violent felony as such term is defined in Code Section 17-10-6.1;
(2) A sexual offense as such term is defined in Code Section 17-10-6.2;
(3) Trafficking of persons for labor or sexual servitude as prohibited by Code Section 16-5-46;
(4) Neglecting disabled adults, elder persons, or residents as prohibited by Code Section 16-5-101;
(5) Exploitation and intimidation of disabled adults, elder persons, and residents as prohibited by Code Section 16-5-102;
(6) Sexual exploitation of a minor as prohibited by Code Section 16-12-100;
(7) Electronically furnishing obscene material to a minor as prohibited by Code Section 16-12-100.1;
(8) Computer pornography and child exploitation as prohibited by Code Section 16-12-100.2;
(9)(A) Any of the following offenses when such offense is committed against a law enforcement officer while such officer is engaged in the performance of his or her official duties:
(i) Aggravated assault in violation of Code Section 16-5-21;
(ii) Aggravated battery in violation of Code Section 16-5-24; or
(iii) Obstruction of a law enforcement officer in violation of subsection (b) of Code Section 16-10-24, if such violation results in serious physical harm or injury to such officer.
[...]
(10) Driving under the influence as prohibited by Code Section 40-6-391.
O.C.G.A. § 42-8-60 (j)
Benefits of Using First Offender
The biggest benefit is that upon successfully completing your first offender sentence, the judge will dismiss the eligible charges against you in your case. This normally happens automatically when probation submits an order of discharge and acquittal for the judge to sign when your sentence is over. Having your charges dismissed cleans your slate in the case and allows you to move forward in life without any conviction.
Additionally, whether you're serving an active first offender sentence or you have completed it successfully, you can honestly say in a job interview that you have not been convicted of anything. The formal way the court system describes a person being convicted is that the person has been "adjudicated guilty." A person has not been adjudicated guilty while they are serving a first offender a sentence or after they have successfully completed it.
Another benefit is that as of July 1, 2026, any person sentenced under the First Offender Act shall have public access to their first offender record restricted, so that clerk's office and law enforcement agencies shall restrict public access to such records and criminal history. It does not erase the records where they do not exist anymore, but it restricts access to them to the fullest extent the law allows. (O.C.G.A. § 42-8-62.1). This will, for example, prevent access to records in the case requested under Georgia's Open Records Act (O.C.G.A. § 50-18-71(a)) and will prevent some employers from seeing the charge at all on your criminal history. However, some employers in sensitive areas (like schools hiring teachers) or governmental agencies still tend to be able to see everything on a criminal history even when restricted. What they see will be an arrest with a first offender disposition and will not show up as an actual conviction. Please note that if a person's first offender treatment is revoked, the record will no longer be restricted or sealed.
Risks of Using First Offender
The biggest risk of using first offender is that if a person violates the terms of their probation or sentence in any way, they may have their First Offender treatment revoked. If it is revoked, the charge becomes a permanent convictions on their record and they face resentencing where the judge may resentence them on each count up to the maximum for each charge. The risk is greatest if the first offender sentence is very long and there are many charges.
For example, if a person uses First Offender for:
-felony fleeing or attempting to elude, (1-10 years, can't be probated)
-felony possession of marijuana with intent to distribute (1-10 years), and
-possession of a firearm during the commission of a felony (+5 years),
suppose the first offender sentence is a total of 16 years to serve one year in prison (with the balance of 15 years on probation). If at any time during all those years the person under sentence commits a new offense or violates their probation, they could have their first offender revoked and resentenced to up to 25 years in prison (up to 10 years for the fleeing, up to 10 years for the marijuana charge, and 5 years for the firearm charge). Depending on the manner of the violation, the likelihood for a big resentencing increases. If someone is concerned about their ability to stay out of trouble for that long, they may not want to use first offender even if they can.
First offender FAQ's
Q: What actually happens when I am sentenced under First Offender?
A: A person receiving First Offender treatment in their case still stands in front of the judge in court and enters a guilty plea (or best interest guilty plea), but they are not "adjudicated guilty" or legally convicted at that time. They serve the sentence imposed just like normal. Then, as long as they complete their sentence successfully, their charges are dismissed by the judge at the end. However, if they violate their probation, they will face a revocation of probation where their first offender status may be revoked. If first offender if revoked, they receive a permanent conviction on their record for the original charges and face resentencing for those charges.
Q: Should I use First Offender for a misdemeanor charge?
A: Most attorneys would advise their client to save first offender for use in felony cases, although it can be used for misdemeanor cases as well. A prior conviction for a misdemeanor would not prevent you from being eligible to use first offender on a felony later on. With that said, there are some circumstances where it might make sense to use First Offender on a misdemeanor.
Q: What if I have two active cases? Is there any way to use first offender treatment?
A: Yes it is technically legally possible to received First Offender treatment for separate cases within the same jurisdiction. While First Offender can only be used on one case (i.e. one indictment or one accusation), if the prosecutor and judge allow separate cases to be joined for sentencing (making them legally considered one case), then first offender is possible. Under Higdon v. State, 311 Ga. App. 387 (2011), first offender treatment is permitted on "one or more offenses set forth in multiple charging instruments consolidated or joined for one trial."
Q: I was sentenced under First Offender before July 1, 2026, and my active first offender sentence was never sealed/restricted. Can I get it restricted now or is it too late?
It's not too late, and you are entitled to have your first offender record restricted upon you or an attorney you hire filing the required petition. Under O.C.G.A. § 42-8-62.1:
(c) An individual who was sentenced pursuant to this article prior to July 1, 2026, and has not had their sentence revoked and adjudicated guilty, may petition the court that ordered such sentence for an order to limit public access to his or her case information pursuant to subsection (b) of this Code section. Notice of such petition shall be sent to the clerk of court and the prosecuting attorney. A notice sent by registered or certified mail or statutory overnight delivery shall be sufficient notice.
(d) Within 90 days of the filing of a petition pursuant to subsection (c) of this Code section, the court shall order restriction and sealing of the criminal file, docket books, criminal minutes, final record, all other records of the court, and the defendant's criminal history record information in the custody of the clerk of court, including within any index, to be sealed and made unavailable to the public, except as provided in subsection (h) of this Code section.
If you are currently serving a First Offender sentence and wish to save some money and file the petition yourself, here is a form that has kindly been provided to the public by the Georgia Justice Project:
This form was originally downloaded from: HB 162: First Offender Updates & Resources - Georgia Justice Project
Q: I was sentenced under First Offender before July 1, 2026, and I already successfully completed my first offender sentence but it was never sealed/restricted. Can I get it restricted now or is it too late?
It's not too late, and you are entitled to have your first offender record restricted upon you or an attorney you hire filing the required petition. Under O.C.G.A. § 42-8-62.2:
(c) An individual who has been exonerated of guilt and discharged without court adjudication of guilt as a matter of law or pursuant to a court order pursuant to this article prior to July 1, 2026, may petition the court that granted such discharge for an order to seal and make unavailable to the public the criminal file, docket books, criminal minutes, final record, all other records of the court, and the defendant's criminal history record information in the custody of the clerk of court, including within any index. Notice of such petition shall be sent to the clerk of court and the prosecuting attorney. A notice sent by registered or certified mail or statutory overnight delivery shall be sufficient notice.
(d) Within 90 days of the filing of a petition pursuant to subsection (c) of this Code section, the court shall order the criminal file, docket books, criminal minutes, final record, all other records of the court, and the defendant's criminal history record information in the custody of the clerk of court, including within any index, to be sealed and made unavailable to the public.
If you have already successfully completed your First Offender sentence and wish to save some money and file the petition yourself, here is a form that has kindly been provided to the public by the Georgia Justice Project:
This form was originally downloaded from: HB 162: First Offender Updates & Resources - Georgia Justice Project
Q: What is the difference between First Offender treatment and Conditional Discharge treatment under O.C.G.A. § 16-13-2?
A: They both are similar in that they allow a person to avoid a conviction at the time of their guilty plea. Both allow the eligible charges to get discharged (dismissed) upon the successful completion of the sentence and both carry the same risk that a person can face resentencing if their first offender or conditional discharge is revoked for any violation.
They are used in different situations, though. While First Offender can be broadly used on my many types of charges, Conditional Discharge is available only for simple drug possession charges or nonviolent property crimes related to drug/alcohol addiction. It cannot be used for intent to distribute or drug trafficking cases, though. Additionally, Conditional Discharge is only available if a person does not have any prior conviction for any offenses under Title 16, Chapters 13, Articles 2 or 3 (all drug offenses), or any other such drug offense from any other jurisdiction. Additionally, the length of a Conditional Discharge sentence cannot be longer than 5 years' probation.
Q: Does using Conditional Discharge prevent me from using First Offender?
A: No. They are separate options. Even if you used Conditional Discharge on a felony drug possession case, as long as Conditional Discharge was never revoked, you were never convicted of the felony and would be legally eligible to be sentenced under First Offender for a new case. However, whether a judge would allow conditional discharge treatment is up to their discretion.
Q: Does using First Offender prevent me from using Conditional Discharge?
A: No. They are separate options. Even if you used First Offender on a drug possession case, as long as First Offender was never revoked, you were never convicted of the drug possession charge and would be legally eligible to be sentenced under First Offender for the new case. However, whether a judge would allow Conditional Discharge treatement is up to their discretion.
