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Posted on 09/01/2015
by Russ Rosenberg.
Although passed in 2013, recent policy change by the courts in the State of Georgia may now impact employers. The purpose of the First Offender Act "is to give first time offenders a chance to learn from their mistake and move on with their lives without the burden of a conviction."
Similar to a deferred adjudication in other states, the law mandates that a defendant sentenced as a First Offender who successfully completes their sentence will have the conviction vacated and the record sealed from their official GCIC (Georgia Criminal Index) criminal history report. Certain First Offender records related to serious sexual or violent offenses will remain available for employment with children, elderly, and the mentally disabled. First Offender records will also be available for law enforcement and criminal justice purposes. This paragraph speaks to employment with Georgia State and Local agencies but the results from a private employer and private screening company may be different.
A defendant is not automatically granted First Offender status. Before plea and sentence, a defendant must ask to be sentenced under the First Offender Act and the judge must agree. There is no right to appeal if the judge denies your request.
A First Offender adjudication is not a conviction. It is a “deferred adjudication,” which means that even though there is a guilty plea, a conviction is not entered. Once the defendant successfully completes the terms of sentence, the court will “discharge” the case without conviction. When the discharge is filed, the criminal records should be sealed from the official court record.
If the defendant violates the terms of their sentence or probation, the judge may revoke their First Offender status. If a defendant's First Offender status is revoked, a conviction of the offense is imposed along with sentencing.
Court records of First Offender cases are kept by the clerk of court and remain publicly available after discharge. The First Offender Act requires the clerk notate the file to indicate discharge and exoneration, but the records remain publicly available. Background screening providers should notate the file to indicate First Offender status.
The short answer is no. It is not a conviction if they have successfully completed the conditions imposed by the court.
Although the First Offender Act states that a discharged First Offender case “may not be used to disqualify a person in any application for employment or appointment to office in either the public or private sector,” Georgia courts have ruled that employers can make decisions based on discharged First Offender cases because of Georgia’s status as an at-will employment state. This is a slippery slope, however, and you should consult with your legal counsel when making such a decision.
There is only one difference. In Georgia, many courts are starting to block access to these cases, and in the future, they may not be accessible. Otherwise, as in all states, a successfully completed deferred adjudication is not a conviction and should not be considered as one when it comes to hiring decisions. This is the same as in all other states with deferred adjudication guidelines.