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Expungement and Record Restriction

Retroactive first offender status in Georgia: What is it and what you need to know

By March 29, 2021No Comments

Everyone makes mistakes, and sometimes, people make mistakes that can follow them for the rest of their lives. If you were convicted of a crime, especially a felony, that criminal record can determine whether you’re able to find a job, secure housing, or even enroll in school.

Luckily, in Georgia, there is a law known as the “second chance” law, which allows first offenders to avoid conviction and potentially have all records of their criminal activity sealed.

The problem is, in some cases, first offenders don’t even find out about this option until years after their conviction.

At Frye Law Group, we work with clients at all stages of their charges to help them move forward towards a better future. Read on to find out how you can retroactively apply for first offender status, and reduce or even remove that black mark on your criminal record.

The Georgia First Offender Act

In 1968, Georgia passed the First Offender Act, sometimes referred to as the “second chance” law. Under the first offender act, individuals are allowed to avoid conviction if they’ve never been convicted of a felony before (with the exception of certain severe crimes like a serious violent offense or sexual assault). 

These individuals are referred to as “first offenders,” since they’ve never committed a serious offense before.

If you plead guilty under first offender status, you are never formally convicted, and you will likely get off with a reduced sentence or even simply probation. It also opens up the possibility for the offender to apply for record restriction (previously known as “expungement”) after their sentencing, which would hide all records of their criminal activity from the public.

First offender status isn’t automatic.

You have to apply for it, and even then, it’s up to the discretion of the judge whether to grant it or not. But if you’re never even informed that this is a possibility, how are you supposed to take advantage of it?

Retroactive first offender status

There are all sorts of situations in which you might not be informed of the possibility to apply for first offender status. Maybe your attorney failed to mention it to you, or maybe you didn’t even have representation when you were being sentenced. 

If a situation like this happened to you, you’re in luck. Even years after the fact, you can apply for retroactive first offender status. You just have to prove that you would have met the requirements for first offender status to begin with, if you had known about it.

If the judge grants it to you, your conviction will be wiped from your record, and you will further have the option to have your record restricted. If you’re still serving time, you might even be able to have your sentence reduced.

How to apply for retroactive first offender status

There are three steps to take when applying for first offender status to be granted retroactively.

  • First, you have to prove that you were eligible for first offender status when you were first sentenced, and that you were not made aware of it as a possibility.
  • Second, you have to file a petition for retroactive application in the same court where you were convicted. You will need to obtain the consent of your prosecutor in order to complete this step.
  • Finally, the court will hold an evidentiary hearing in order to determine whether to grant you first offender status or not.

There’s no guarantee that the judge will grant it to you, but assuming you meet all the requirements, there’s a good possibility that you could take an important step toward cleaning up your criminal record. 

Your chances are especially good if you have an experienced criminal defense attorney by your side throughout the process.

Contact a Georgia criminal defense attorney today

The Frye Law Group has the experience and expertise to guide you through the process of retroactively applying for first offender status.

With our guidance, we can make sure you have all the proper documentation and evidence to support your application. Contact us today to schedule a free consultation.

Directions:

From I-75: Exit at the Highway 120 (South Marietta Parkway) (Exit #263) and follow the signs to KSU Marietta Campus.

You will be headed west and cross over Cobb Parkway (US 41).

Continue until you get to the intersection with Atlanta Street.

At the traffic light turn right onto Atlanta St. (going north).

Atlanta Street will take you straight to the Marietta Square.

Prior to entering the Square, you will see Anderson Street a block before the Square.

Turn Right onto Anderson Street. The Lawyer’s Building will be on your right.