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First Offender Status Cannot Be Added Once a Plea is Entered

by merlin on August 19th, 2014
  • Sumo

Having obtained permission from the State to modify a sentence entered this term of Court if it was legal (because they stated that they had done such a thing before), the next step was an inquiry into the legality of accomplishing this.  Unfortunately, it just doesn’t appear to be permitted under the law, according to the plain language of the statute and the cases that have discussed the ability of courts to modify sentences to include First Offender status.

The below case, Burchette v. State, 247 Ga.App. 873 (Ga. Ct. App. 2005), talks about a modification of an existing sentence to include First Offender status, because the person was considered eligible for it but had not entered their sentence under the Act.  It specifically dealt with the ability of the Court to modify the sentence imposed within the one-year time-limit for such modifications under Section 17-10-1(f) of the Official Code of Georgia.

 That subsection reads as follows:

Within one year of the date upon which the sentence is imposed, or within 120 days after receipt by the sentencing court of the remittitur upon affirmance of the judgment after direct appeal, whichever is later, the court imposing the sentence has the jurisdiction, power, and authority to correct or reduce the sentence and to suspend or probate all or any part of the sentence imposed. Prior to entering any order correcting, reducing, or modifying any sentence, the court shall afford notice and an opportunity for a hearing to the prosecuting attorney. Any order modifying a sentence which is entered without notice and an opportunity for a hearing as provided in this subsection shall be void. This subsection shall not limit any other jurisdiction granted to the court in this Code section or as provided for in subsection (g) of Code Section 42-8-34.”

Unfortunately, in the Burchette case, the Court looked to the plain language of the First Offender statute and saw that the power of the court is entirely based on the punishment being imposed prior to finding the person guilty.  Therefore, a post-sentence modification that would seek to impose the First Offender statute’s conditional discharge provisions would be impossible to apply once the sentence was imposed and the person had already entered a guilty plea that had been adopted by the Court.  As I had learned from my research previously, when this situation first arose, the only legal way to get this done would be to withdraw the guilty plea during the same term of court, if the Court allows it, and then re-sentence the person under the First Offender Act.

The Burchette case is below:

 Banks Stubbs Neville & Cunat, Rafe Banks, Cumming, for appellant.

        Penny Penn, District Attorney, for appellee.

        ELLINGTON, Judge.

        In August 2001, a Forsyth County jury convicted Michael Burchette of arson, OCGA § 16-7-60. The trial court denied his request for first offender treatment under OCGA § 42-8-60 and sentenced him to 15 years probation. After this Court affirmed his conviction,1 Burchette filed a motion with the trial court to modify his sentence by granting him first offender treatment. The court denied the motion, finding that it could not grant first offender treatment after it had imposed sentence. Burchette appeals and, finding no error, we affirm.

        Georgia’s first offender law, OCGA § 42-8-60(a), states as follows:

        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.

        (Emphasis supplied.) Under the plain language of this statute, a trial court is only authorized to grant first offender treatment before a defendant has been adjudicated guilty and sentenced. Lewis v. State, 217 Ga.App. 758, 759, 458 S.E.2d 861 (1995). It follows that, once a trial court imposes a sentence, the defendant loses the opportunity to be treated as a first offender. Id.

        Burchette argues, however, that the trial court retained jurisdiction to modify or reduce his sentence in this case pursuant to OCGA § 17-10-1(f),2 and, therefore, the trial court had the authority to modify his sentence to give him first offender treatment. But OCGA § 17-10-1(f) only provides an opportunity for a court to modify an existing sentence. Therefore, the statute cannot be used to grant first offender treatment when the first offender act specifically prohibits such modification after sentencing. OCGA § 42-8-60 et seq.; Lewis v. State, 217 Ga.App. at 759, 458 S.E.2d 861. Burchette’s argument to the contrary is without merit.

        Accordingly, we find the trial court properly denied Burchette’s motion to modify his sentence.

         Judgment affirmed.

        SMITH, P.J., and ADAMS, J., concur.

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Notes:

 1. Burchette v. State, 260 Ga.App. 739580 S.E.2d 609 (2003); see also Burchette v. State, 278 Ga. 1, 3, 596 S.E.2d 162 (2004) (holding that a portion of the trial court’s Allen charge to the jury was inaccurate and should no longer be given, but affirming Burchette’s conviction).

 2. Within one year of the date upon which the sentence is imposed, or within 120 days after receipt by the sentencing court of the remittitur upon affirmance of the judgment after direct appeal, whichever is later, the court imposing the sentence has the jurisdiction, power, and authority to correct or reduce the sentence and to suspend or probate all or any part of the sentence imposed.

         OCGA § 17-10-1(f).

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