Post-Conviction Matters in Georgia

Judges sentence most defendants to probation. Nationwide, about three million people are under court supervision (probation or parole). The prison population is under two million. Usually, court supervision includes restrictive conditions. Additionally, Georgia law doesn’t cap the length of probation. Therefore, court supervision terms in the Peach State are much longer than the terms in nearby states.

Some people have issues with authority. Other people have medical, transportation, or other issues that prevent them from keeping appointments and meeting deadlines. In these cases, a short jail sentence might be better than probation. That’s especially true if the jail offers alternative sentencing, like weekend or work release programs. Additionally, during periods of overcrowding, many jails offer three-for-one credit. So, a thirty-day sentence becomes a ten-day sentence.

Even if a defendant has no such issues, probation is very difficult to successfully complete, unless a Marietta criminal defense lawyer is there to help. The state gives, and the state takes away. Georgia has harsh probation laws, and Georgia also gives judges considerable discretion in post-conviction matters. An attorney could be the difference between a reasonably happy ending and a very unhappy one.

Probation Modification

Common conditions of probation include regular meetings, usually bi-monthly meetings, with a supervision officer. These appointments aren’t dental appointments. Defendants cannot reschedule them to suit their schedules. It gets worse. Some probations include random substance use tests. Typically, a defendant receives a message directing him/her to show up at a certain place, usually within two or three hours, and take a blood or other test.

Judges have almost unlimited discretion to modify the conditions of probation. They often impose additi0oonal conditions in probation revocation matters (more on that below). If the defendant is on the opposite end of the scale, meaning that s/he has toed the line for at least a few months, a Marietta criminal defense lawyer often convinces judges to lighten the load.

This direction includes the power to terminate probation early. The law in this area changed significantly in 2021. Once probationers serve three years of felony probation, they’re eligible for discharge if the defendant has:

• Stayed out of trouble with the law (no arrests),
• No probation revocations within the last two years, and
• Paid all restitution.

Truthfully, a Marietta criminal defense lawyer doesn’t handle many misdemeanor early termination motions. The term is usually less than a year, except in extreme cases.

Enlisting the direct or indirect help of the Department of Community Supervision is critical in both modification and termination proceedings. Usually, if the supervision officer agrees to the motion, the judge signs an order without holding a hearing. If the supervision officer agrees not to oppose the motion, the judge doesn’t ask too many questions.

Probation Revocation

Meetings with supervision officers and random drug tests are just two conditions of felony probation in Cobb County. Others include:

• Avoiding further trouble with the law,
• Supporting dependents (i.e. no child or spousal support arrears),
• Working and/or attending school full time,
• Staying away from disreputable places and people, like strip clubs and known felons,
• Completing community service or other such requirements, and
• Paying fines, costs, and restitution.

We deliberately arranged these bullet points in this order. Arrests usually trigger mandatory probation revocation proceedings. At the other end, the failure to pay money usually cannot support a probation revocation motion. Debtors’ prisons are illegal in the United States.

At a revocation proceeding, the prosecutor’s burden of proof is only a preponderance of the evidence (more likely than not). If officers questioned Steve before they Mirandized him, his arrest was probably illegal. However, the mere fact he was arrested, whether or not that arrest was legal, probably constitutes a probation violation.

During sentencing, judges have several options. First, they can give defendants stern lectures. That happens in a few cases. The second option, lengthening the term or adding conditions, isn’t very common either. If the defendant cannot follow the existing conditions, adding more does little good.

The third option, jail time as a condition of reinstatement, is very common. Many judges believe, rightly or wrongly, that a few days in stir convinces defendants to walk the straight and narrow. Frequently, a Marietta criminal defense lawyer negotiates the incarceration term down, almost to time served in many cases.

Record Sealing and Expunction

The law recently, and significantly, changed in this area as well. Before 2021, criminal record sealing was nearly impossible in Georgia. Things are different now.

Courts will restrict (seal) up to two misdemeanor convictions, unless the defendant was convicted of DUI or another listed offense.

Sealing a felony is a multi-step process. First, a Marietta criminal defense lawyer must obtain a pardon. Governors usually grant pardons if the defendant has served his/her sentence and has a compelling before-and-after story (I was addicted to heroin but now I’m clean).

Second, an attorney must file a petition with the court. This procedure is similar to the procedure for early termination of probation, which was outlined above.

The new law has other benefits. For example, it gave employers limited immunity in negligent hiring lawsuits. That’s a lot of Legalese, so let’s break it down.

If an employer hires an incompetent person and that employee injures someone, the employer could be liable for damages, under the negligent hiring doctrine. Thanks to the 2021 law, the injury must be directly related to the incompetence. If Tim has a DUI conviction on his record and he assaults someone at work, his boss doesn’t have to worry about a negligent hiring lawsuit. Other provisions apply as well.

Post-conviction legal representation is often more important than pre-conviction representation. For a free consultation with an experienced Marietta criminal defense attorney, contact The Phillips Law Firm, LLC. Convenient payment plans are available.