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First Offender is Available for Only One Charging Instrument

Posted by Sean A. Black | Nov 01, 2012 | 8 Comments

The Supreme Court released its decision in Higdon v. State on November 1, 2012.   The case involves the application of the First Offender Act to a defendant who is charged in multiple accusations or indictments.  The First Offender Act can be a great boon for defendants who qualify.  It allows the court to stay adjudication of guilt for a period of time subject to certain conditions.  These conditions can still include incarceration and probation.  However, upon the completion of the conditions, the case or cases would be dismissed.

The important language in the statute being considered in Higdon was "No person may avail himself or herself of this article on more than one occasion."

Higdon was charged with eight criminal offenses set out in three different accusations.  Each accusation were for offenses occurring at different times.  Three accusations were in Catoosa County and one was in Walker County.  He was also charged in a Walker County indictment.

At a hearing on November 23, 2010, Higdon entered guilty pleas to all three accusations and the indictment.  Higdon asked that the court allow him first offender treatment as to all eight crimes charged in the four charging instruments.  The Superior Court determined that it could not give him first offender treatment on all of the charging instruments but could allow him first offender on one of the charging instruments.

Higdon contended that "one occasion" meant one hearing.  Because he resolved all of his cases at one time, he felt that he should have been allowed first offender for all cases disposed of on that occasion.

The court held that in the absence of a joinder of the cases for prosecution, the plea and sentencing of each case would be an occasion, and that the defendant could avail himself of the first offender act on only one of those occasions.  Where more than one offense is charged in a single accusation or trial, the defendant can avail himself of first offender on all charges on that charging instrument.

Cases can be joined for prosecution where the conduct is based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan.  Cases can also be consolidated for trial. Such joinder or consolidation might allow first offender for more than one offense.

The court's decision puts some pretty significant limitations upon the availability of first offender for defendants who have a series of charges.  These issues can be worked around, but may require agreement from prosecutors to re-accuse cases into a single charging instrument.

The Georgia Association of Criminal Defense Lawyers rightly argued that the court's decision allows prosecutors to manipulate their filings to prevent a defendant from receiving the benefit of first offender.  For instance, a defendant facing ten charges could be charged in ten one count accusations instead of one ten count accusation.  The court recognized that concern but pointed out that prosecutors are obligated under OCGA §16-1-7 to pursue charges in a single prosecution where they arise from the same conduct.   This does not fully answer the question for related conduct that occurs over a short period of time.

In short, defense counsel may have to pursue motions for joinder for trial to give the court the opportunity to allow first offender for their clients.

About the Author

Sean A. Black

Sean A. Black is a 1992 graduate of the Emory University School of Law. He has been in private practice in Toccoa, Georgia since June 1, 1992.


Niko Swift Reply

Posted Dec 03, 2016 at 21:24:23

If I have 1 charge w/4 counts listed on my GCIC report and the 1 count disposition:1st offender and next 3 counts are disposition: guilty (convicted/ adjudicated). Can I request for my file to be sealed?

Sean A. Black Reply

Posted Dec 04, 2016 at 05:43:12

If it was one indictment with four counts and you were afforded First Offender Act treatment and completed it successfully, the first offender should apply to all counts. Your description indicates that this may not be the case, but it is difficult to know without seeing the GCIC.

Rm Reply

Posted Sep 03, 2021 at 18:50:52

I live in Walker county Ga and was wondering if you practice in this county? I am looking to petition the court to be removed from the sex offender registry. Also what does this cost and how long is the process? Thanks

Sean A. Black Reply

Posted Sep 07, 2021 at 05:33:52

I am in Toccoa, which is northeast Georgia. Walker County is too far for me.

Danny Williams Reply

Posted May 04, 2022 at 11:08:53

If I have 3 charges 1 count each can I use first offenders on all 3 charges if they was all ran together?

Sean A. Black Reply

Posted May 04, 2022 at 11:35:47

If I understand you correctly, you have three separate criminal prosecutions against you, each involving a single count. So, presumably different offense dates.

The only way that you could use first offender on all of them is if the prosecutor re-charged the offenses in a since accusation.

Tyianna Allen Reply

Posted May 16, 2024 at 02:33:04

I got 4 charges will I qualify for first offender on all 4 charges

Sean A. Black Reply

Posted May 16, 2024 at 06:00:15

If the four charges are all in a single case, then you should be eligible for First Offender Act treatment or conditional discharge treatment, assuming they are all qualifying offenses, depending on the flavor of first offender being selected.

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