Post-Conviction Relief in Georgia: A Closer Look

The game doesn’t always end when the final horn blows. In 2011, because of massive rules violations, the NCAA stripped USC of its 2004 BCS national title. Standout tailback Reggie Bush also relinquished his Heisman trophy after the NCAA threatened to take it back. Allegedly, a sports company gave Bush and his family over $280,000 while the school looked the other way. Several other football and basketball players also received improper benefits. USC probably had some of the best lawyers in California through this process. But no attorney can do much with facts that bad.

Likewise, a criminal case doesn’t end when the judge’s gavel falls. Some common scenarios are outlined below. Sometimes, the defendant self-destructs and even the best Marietta criminal defense lawyer cannot even minimize the damages. However, in most cases, an attorney makes a big difference. The criminal law process stresses punishment, but rehabilitation is also an important factor. In post-conviction matters, an attorney must usually emphasize rehabilitation. No one wants to see a defendant locked up or in and out of trouble forever, at least in most cases.

Putting Out Fires

Worldwide, lots of fires broke out during the late 1970s. Former President Jimmy Carter did a pretty good job of putting them out, or at least controlling them. Similarly, when a judge places a defendant on probation or parole, lots of things could go wrong. So, a good Marietta criminal defense lawyer must also be a good firefighter.

NCAA rules violations range from $280,000 in gifts to changing an athlete’s grade on an English essay. The former is basically indefensible. The latter requires the kid to write another essay or maybe retake the class. Probation and parole violations are much the same. Some common ones include:

• Committing Another Offense: Picking up a new case while under court supervision is probably the biggest no-no in this area. Unless a Marietta criminal defense lawyer can prove officers railroaded the defendant, the defendant must simply accept whatever punishment the court doles out.
• Possession of Prohibited Item: Most probationers and parolees must avoid drugs and alcohol. They also cannot possess firearms, pornography, or a long list of other items. Increasingly, there’s a fine line between legal and illegal substances. If Jim takes a leftover Oxycontin after his prescription expires, most people wouldn’t say Jim ingested a prohibited substance. Prohibited item cases are harder to defend, mostly because the burden of proof is so low in these matters.
• Missed Appointment: Other than subsequent offense, missed appointment revocations are probably the most common ones in Cobb County. Usually, if the defendant has a good court supervision record, a Marietta criminal defense attorney can convince a probation officer to issue a “go forth and sin no more” warning instead of a revocation motion.

Commonly, people must also pay money, like restitution, fines, and supervision fees, as a condition of probation or parole. Incarceration for nonpayment usually violates the Constitution. Debtors’ prisons are illegal in the United States, whether the debt is public or private.

Plea bargain options in revocation cases include an extended term and a brief stint in jail as a condition of reinstatement.

Criminal Appeals

This section won’t be too long because criminal appeals aren’t usually successful. For decades, courts have held that defendants are entitled to fair, not perfect, trials. This standard requires a serious error that affected the trial’s outcome.

Judicial error, like improperly admitting evidence or allowing an argument, is the most common appeal error. Only an abuse of discretion counts. If a baseball umpire calls a pitch at cap level a strike, that’s an error. If an umpire calls one of these pitches a strike, that’s an abuse of discretion.

Furthermore, the error must’ve affected the result. If a judge lets a biased person on the jury, that’s an error. Most likely, however, that error didn’t affect the trial’s outcome.

Probation Early Discharge

Georgia law doesn’t cap criminal probation terms. As a result, probation in the Peach State is three times longer than probation for a similar offense in another state.

The good news is that the law recently changed in this area, so it’s much easier to end probation or parole early in Georgia. The new requirements are:

• No new cases,
• All money (fines and restitution) paid, and
• No revocations in the last two years.

That’s it! However, before you get too excited, we should point out that checking all these boxes just gets you a day in court. Unless a Marietta criminal defense attorney builds a good foundation and advocates effectively, a day in court is all you’ll get.

The foundation begins with the supervision officer. If this person agrees to the early discharge motion, the judge may grant it without a hearing. If this person agrees not to oppose the motion, the defendant has a fighting chance. If this person opposes the motion, early discharge is an uphill fight.

Probation officers, especially in places like Marietta, have very large caseloads. If a defendant has more or less toed the line for two years, many probation officers are anxious to get a file off their desks.

At a hearing, a Marietta criminal defense lawyer often uses a before-and-after argument. Assume Rick, like most other defendants, was on drugs when he assaulted and nearly killed Jim. Rick undergoes a religious conversion. Jews, Muslims, Christians, and other religious individuals are less likely to use drugs than non-religious people.

Expungement/Sealing

This section will be pretty short as well. Thanks to a recent legal change, expungement, or record restriction in Georgia, is now either simple or impossible. Restriction means a prior conviction is visible to judicial officers, law enforcement officers, and a few bureaucrats. But for all other purposes, the conviction disappears.

Four years after their sentences end, most people can restrict up to two prior misdemeanor convictions. Prohibited misdemeanors include DUI, assault, domestic assault, and several others.

Felony restriction has no time or offense restrictions. Only defendants with executive pardons are eligible for restriction. A pardon is a long shot but not a lost cause. Generally, governors consider about a tenth of pardon requests. They grant about a tenth of considered requests. Typically, if the defendant completed the sentence more than ten years ago and has kept clean since then, the governor at least gives the application a look.

Lawyers keep working for you after court is adjourned. For a free consultation with an experienced Marietta criminal defense attorney, contact The Phillips Law Firm, LLC. Convenient payment plans are available.