Can a Georgia trial judge use First Offender Act sentencing for a misdemeanor, or is it limited to felonies only?

Plain-English summary

A district attorney asked the Georgia AG whether the First Offender Act could be used to sentence a defendant convicted of a misdemeanor, or whether the Act only reached felonies. The AG concluded that the statute's plain text contains no felony-only limit, and that reading one in would render the legislature's separate DUI carve-out (which excludes a class of misdemeanors from First Offender treatment) pointless. The Act therefore reached misdemeanor convictions as well, leaving the trial court with discretion to defer adjudication and place the defendant on probation under § 42-8-60 unless a different statute specifically blocked it.

Currency note

This opinion was issued in 2000. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Historical context

The First Offender Act, O.C.G.A. § 42-8-60 et seq., let a Georgia trial court withhold an adjudication of guilt after a guilty plea, no contest plea, or guilty verdict, place the defendant on probation (or in confinement), and ultimately discharge the defendant without a conviction on the record. The statute conditioned eligibility on the defendant not having a prior felony conviction, but said nothing about whether the offense being sentenced had to be a felony.

The DA's concern came from a stray line in Arrington v. State, 234 Ga. App. 187 (1998), where the Court of Appeals said the First Offender Act's provisions "are applicable only to felonies." That sentence was not necessary to the holding (the trial court in Arrington had given First Offender treatment only on the felony count, not on the misdemeanors), so the AG treated it as dicta and not binding.

The AG built the affirmative case on three points. First, the text of § 42-8-60 contains no felony-only language. Second, O.C.G.A. § 40-6-391(f) explicitly says the First Offender Act "shall not apply to any person convicted of violating" the DUI statute, and DUI under § 40-6-391 is a misdemeanor. If first-offender treatment were already unavailable for misdemeanors, the legislature's DUI carve-out would have been surplusage, and the rules of statutory construction (citing City of Buchanan v. Pope, 222 Ga. App. 716 (1996)) require giving meaning to every part of a statute. Third, both the Georgia Supreme Court and the Court of Appeals had reviewed cases over the prior fifteen years in which defendants received first-offender treatment for misdemeanors (citing Bowers v. Shelton, Hardman v. State, Littlejohn v. State, and Trogdon v. State) without flagging any legal problem with the disposition.

The opinion concluded that, absent a specific statutory bar like § 40-6-391(f), trial courts could sentence a misdemeanor defendant under the First Offender Act.

For prosecutors and defense attorneys at the time

The opinion confirmed what many courtrooms were already doing. Defense counsel could ask for First Offender treatment in misdemeanor cases, and prosecutors could not object on the categorical ground that the Act was felony-only. Counsel still had to check whether the specific misdemeanor statute carried its own first-offender exclusion (DUI being the obvious one).

For trial judges at the time

Sentencing discretion under § 42-8-60 extended to misdemeanors as well as felonies. The judge still had to confirm the defendant had no prior felony conviction, review the criminal history pulled from the Georgia Crime Information Center, and confirm no statute specifically excluded the offense from first-offender treatment.

Common questions

Q: What is the First Offender Act?
A: The Act, O.C.G.A. § 42-8-60 et seq., let a Georgia trial court accept a guilty plea, no contest plea, or guilty verdict but withhold the formal adjudication of guilt, place the defendant on probation or in confinement, and then discharge the defendant without a conviction on the record after the sentence was completed. It could only be used once per person.

Q: Did this opinion mean every misdemeanor was eligible?
A: No. The Act did not reach offenses that the legislature specifically excluded by statute. The opinion's main example was DUI under O.C.G.A. § 40-6-391, which is excluded by § 40-6-391(f). Counsel had to check the offense statute itself.

Q: Why did the AG treat the Arrington statement as dicta?
A: In Arrington, the trial court had given first-offender treatment only on the felony count, not on the related misdemeanors. The Court of Appeals' broader statement that the Act applies "only to felonies" was therefore unnecessary to resolve the case in front of it, which is the classic definition of dicta and does not bind later courts.

Q: Did this opinion change anything about the felony eligibility requirement?
A: No. To use the First Offender Act, the defendant still had to lack any prior felony conviction. The opinion only addressed whether the offense being sentenced could be a misdemeanor; it did not relax the no-prior-felony requirement.

Background and statutory framework

When the AG wrote, O.C.G.A. § 42-8-60 said the trial court, after a verdict or plea of guilty (or no contest), could "without entering a judgment of guilt and with the consent of the defendant" defer further proceedings and place the defendant on probation, or sentence the defendant to confinement. Adjudication could be entered later if the defendant violated probation, was convicted of another crime, or proved to have been ineligible from the start. The court could not impose first-offender sentencing without first reviewing the defendant's criminal record from the Georgia Crime Information Center.

The structural argument from § 40-6-391(f) was central. That subsection explicitly excluded DUI defendants from first-offender treatment. Because all DUI offenses under § 40-6-391 were misdemeanors, the legislature would not have needed to write the exclusion at all if the First Offender Act were already limited to felonies. Reading the Act as felony-only would, in the AG's view, treat the DUI exclusion as meaningless.

Citations and references

Statutes:
- O.C.G.A. § 42-8-60 (First Offender Act)
- O.C.G.A. § 40-6-391(f) (DUI exclusion)

Cases:
- City of Buchanan v. Pope, 222 Ga. App. 716 (1996), on construing related statutes together to avoid surplusage
- Bowers v. Shelton, 265 Ga. 247 (1995)
- Hardman v. State, 185 Ga. App. 519 (1988)
- Littlejohn v. State, 191 Ga. App. 852 (1989)
- Trogdon v. State, 176 Ga. App. 246 (1985)
- Arrington v. State, 234 Ga. App. 187 (1998), source of the dicta the AG distinguished

Source

• Landing page: https://law.georgia.gov/opinions/2000-1

Original opinion text

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 treatment for persons convicted of operating a motor vehicle while under the influence of alcohol/drugs. That Code Section states that "[t]he provisions of . . . Article 3 of Chapter 8 of Title 42, relating to probation of first offenders, shall not apply to any person convicted of violating any provision of this Code section." Since all violations of O.C.G.A. § 40-6-391 are misdemeanors, see O.C.G.A. § 40-6-391(c)(1-3), if first offender treatment were available only for felony offenses, the enactment of O.C.G.A. § 40-6-391(f) would have been unnecessary and mere surplusage. Under the rules of statutory construction, all related statutes must be construed together, giving meaning to each part of the statute, and avoiding constructions that result in surplusage and meaningless language. City of Buchanan v. Pope, 222 Ga. App. 716, 717 (1) (1996). Thus, the logical conclusion to be drawn from the enactment of O.C.G.A. § 40-6-391(f) is that first offender treatment is available for non-DUI misdemeanor offenses, unless otherwise prohibited by statute. In addition to the above statutory support for this construction, both the Georgia Supreme Court and the Court of Appeals have reviewed cases where the appellants therein have been afforded first offender treatment for misdemeanor offenses. See Bowers v. Shelton, 265 Ga. 247 (1995) (Open Records Act case where misdemeanant was sentenced under the First Offender Act for failing to pay state income tax); Hardman v. State, 185 Ga. App. 519 (1988) (trial court did not abuse discretion in denying first offender treatment for three simple battery convictions; no implication in opinion that first offender treatment was legally unavailable and thus outside trial court's sentencing discretion) (overruled on other grounds); Littlejohn v. State, 191 Ga. App. 852, 854 (8) (1989) (First Offender Act does not prohibit imposition of a fine for a misdemeanor offense sentenced pursuant to the Act); Trogdon v. State, 176 Ga. App. 246 (1985) (first offender treatment for misdemeanor violation of O.C.G.A. § 16-9-51). While in these opinions the courts have not squarely addressed your inquiry, at the same time the courts have not expressed any reservation as to the legitimacy of those first offender dispositions. The reservation expressed in your letter arises from the opinion in Arrington v. State, 234 Ga. App. 187 (1998), where the Court of Appeals stated, in passing, that the provisions of the First Offender Act "are applicable only to felonies." In Arrington the defendant pled guilty to one felony and several misdemeanors and was sentenced to five years probation on the felony under the First Offender Act and five consecutive 12-month probated sentences on the misdemeanors, to run consecutively to the felony sentence. After the defendant had completed the felony sentence, the trial court denied his request for first offender discharge, concluding that "the ten years of probation were intended to be one sentence." Id. at 188. After noting that "each count of a multi-count indictment must be sentenced separately," the Court of Appeals held that the defendant should have been discharged because the felony sentence, the only one for which he had received first offender treatment, had been completed. In reaching this decision, the Court of Appeals made no finding that the trial court had given first offender treatment for any of the misdemeanors. Thus, the statement that the First Offender Act provisions "are applicable only to felonies" is unnecessary to the holding since the Court of Appeals found that first offender treatment was given only for the felony. Therefore, as dicta, this language does not alter my construction of the First Offender Act as being applicable to misdemeanor sentences absent some contrary statutory provision. Prepared by: J. JAYSON PHILLIPS Assistant Attorney General