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2000 Georgia Attorney General Reports and Opinions 1 (2000)

handle is hein.sag/sagga0034 and id is 1 raw text is: AG Opinions - Page 1 of 2 fijwrtmznt of '1iia THURBERT E. BAKER 40 CAPITOL SUARE SW ATTMMEY GEMERAL ATLANTA, GA 301044100 OFFICIAL OPINION 2000-1 To: District Attorney January 3, 2000 Eastern Judicial Circuit Re: The First Offender Act, O.C.G.A. § 42-8-60 et seq., is applicable to misdemeanor offenses. You have inquired as to whether a defendant convicted of a misdemeanor offense may be sentenced pursuant to the First Offender Act, O.C.G.A. § 42-8-60 et seq. In your request, you have expressed concern that first offender treatment may only be available to a defendant that has committed felony offenses. Official Code of Georgia Annotated § 42-8-60 provides: (a) Upon a verdict or plea of guilty or a plea of nolo contendere, but before an adjudication of guilt, in the case of a defendant who has not been previously convicted of a felony, the court may, without entering a judgment of guilt and with the consent of the defendant: (1) Defer further proceeding and place the defendant on probation as provided by law; or (2) Sentence the defendant to a term of confinement as provided by law. (b) Upon violation by the defendant of the terms of probation, upon a conviction for another crime during the period of probation, or upon the court determining that the defendant is or was not eligible for sentencing under this article, the court may enter an adjudication of guilt and proceed as otherwise provided by law. No person may avail himself of this article on more than one occasion. (c) The court shall not sentence a defendant under the provisions of this article and, if sentenced under the provisions of this article, shall not discharge the defendant upon completion of the sentence unless the court has reviewed the defendant's criminal record as such is on file with the Georgia Crime Information Center. There is no language in the above statute limiting its application to felony offenses. Furthermore, I am aware of no other provision in Georgia law that operates to limit the Act to felonies. In the absence of any limiting language, the statute should be construed as applicable to both felony and misdemeanor offenses. This construction is implicitly supported by O.C.G.A. § 40-6-391(f) which prohibits first offender