Sentencing and Probation in Georgia

Sentencing for many criminal offenses, both felony and misdemeanor, often involves probation. Once convicted, a sentence can include straight jail time, straight probation, or a combination of jail and probation. 

Straight Jail Time


Straight jail time means you are sentenced to a term of jail time without any probation following. For example, in a plea to a felony drug offense with a possible sentence of 2 to 15 years, assume the judge imposes a 4 year jail sentence. This is straight jail time. No probation is involved. Once your 4 year term is up, you are no longer under any court ordered supervision.

Straight Probation


Straight probation means you are sentenced to a term of probation that includes no jail time. For example, in a plea to a felony drug offense with a possible sentence of 2 to 15 years, assume the judge allows you to serve your entire sentence on probation. If you never violate the terms of your probation, you will never spend one day in jail. One caveat, it is possible to be placed in a State Detention Center as a condition of probation. This confinement usually lasts only a few months. Although technically this is probation and not jail, you are in a State Institution and cannot leave.

Combination of Jail and Probation


A combination of jail and probation is just as it sounds. Using the above example, assume the judge imposes a 4 year sentence with the first 2 years to be served in confinement (jail) and the last 2 years served on probation. Once your jail sentence is up, you will report to your probation officer and serve the remainder of the sentence on probation.

 

THREE TYPES OF PROBATION

Generally speaking, three types of probation exist. These are:

If you are charged with a felony, consult with your attorney to determine if First Offender Probation or Deferred Adjudication is available. If you have a prior felony or if you have already been sentenced as a first time offender, First Offender Probation will not be available.

However, even if you have a prior felony or used first offender, Deferred Adjudication could be available if you are now charged with a drug offense. This is a complicated area and you need to check with your attorney.

Regular Probation


For regular probation, consider the following examples: 

  • (a) Assume the maximum sentence for the offense is 15 years but you received a sentence of probation only for 8 years. If you comply with the terms and conditions of your probation, at the end of the 8 years, your sentence is over. 

  • (b) However, two other scenarios are possible. First, let's say you violate a general condition of probation at the end of the first year. This is called a technical violation. For a technical violation, you can have your probation revoked (i.e. you are sent to jail) for up to two years. Once released, you still have 5 years regular probation left to serve (8 years minus the first year on probation minus the two years in jail).

  • (c) Second let's say at the end of the first year either you commit a new offense or violate a "special condition" of probation." The judge can revoke (send you to jail) the full balance or any portion of your original 8 year probationary sentence. If only a portion is revoked, you will have the remainder of the 8 years left to serve on probation. If he revokes the full balance, obviously no probation remains.


If you are convicted of a felony in Georgia but live in another state, there should be no problem transferring regular probation to your home state.

Note that misdemeanor probation generally cannot be transferred to your home state. Talk to your attorney about your options.

First Offender Probation

Unless you commit a violent crime, you might qualify for First Offender probation. The big advantage of First offender probation is that if you successfully complete First Offender probation, for most eventualities, you do not have a conviction on your record.

OCGA § 42-8-60

If you receive First Offender probation on a drug offense, the Clerk of Court is not supposed to notify the Department of Driver's Services of such conviction. If the Clerk follows the law, you will not suffer a suspension of your driver's license.

To qualify for First Offender probation, you must not have a prior felony conviction, you cannot be charged with a violent felony, you must be advised of the advantages and disadvantages of First Offender treatment, you must ask the judge for it. The judge must review your record and consider all circumstances before allowing you to be placed on First Offender probation.

However, there is a potential downside to First Offender Probation. Let us assume that your offense has a potential sentence of 15 years. You receive a sentence of 8 years First Offender Probation. If you violate any of the terms and conditions of your probation, the judge can revoke, modify, or continue the probation.

Here's the bad part: The judge can enter an adjudication of guilt. If he does so, he can not only revoke your probation, he can sentence you up to the full sentence allowed by law. In this example, that would be a sentence of 15 years less credit for any amount of time served on probation.

 

Keep in mind that if you were sentenced to regular probation of 8 years, and if you violated your probation, the most the judge could revoke is the balance you have remaining.

IMPORTANT: Please note that if you are convicted of another offense while on first offender probation, Georgia law (O.C.G.A. § 42-8-65(b)) requires the Georgia Crime Information Center (GCIC) to change the first offender sentence to a conviction.

First Offender treatment is specifically prohibited by law for DUI cases.

Can Your First Offender Records Ever Be Released?

Yes. Under certain circumstances they can. 

Deferred Adjudication for Drug Offenses


There is a third type of probation in Georgia. It is for first time drug offenses and it involves what is called deferred adjudication. This means that if you have not been convicted of a prior drug offense, the judge can place you on probation and can require you to undergo rehabilitation including medical treatment for up to three years.

If you successfully complete this probation, the charges are dismissed. However, if you violate your probation, the court may find you guilty and sentence you accordingly. One immediate benefit is that your Georgia driver's license will not be suspended.

OCGA § 16-13-2

TERMS AND CONDITIONS OF PROBATION

The Georgia Code provides for certain terms and conditions of probation. Judges often add other terms and conditions. Some commons ones are:

  • Perform community service;

  • Banishment from the judicial circuit;

  • Payment of restitution;

  • Stay away from certain persons or places;

  • Ignition interlock device required on you vehicle;

  • Home confinement;

  • Drug testing and/or treatment

 

Keep in mind that this is not a complete list. Judges often have fertile and creative minds when it comes to imposition of terms and conditions.

 

PROBATION REVOCATIONS

If you commit a new offense or fail to do something that is required of you, your probation officer will probably issue a warrant to revoke your probation.

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