Anything, or almost anything, can happen once. Almost anybody can make a poor decision or simply be in the wrong place at the wrong time. Not surprisingly, about a fifth of convicted criminals are first-time offenders. Back in the day, second chances were few and far between. But the environment is very different today.
Many of the defendants we represent are first-time offenders. Usually, these individuals talk to people who’ve been through the system before, and they hear horror stories about what happens. In some cases, these stories are true. But in most cases, these tales were true. This post outlines some ways that a Marietta criminal defense lawyer helps first-time offenders put their pasts behind them and live their lives with renewed confidence.
Pretrial Diversion
This prosecutor-offered program may be the most common, and most desirable, second chance in Georgia.
In many jurisdictions, prosecutors hand out pretrial diversion offers like candy on Halloween. Any kid with a costume gets a fistful of candy, and anyone who meets minimal qualifications gets a shot at pretrial diversion (conditional dismissal).
Qualifications vary significantly in different courts, and even among different prosecutors in different courts. A first-time nonviolent misdemeanor is almost a universal requirement. Sometimes, prosecutors consider DUI a “nonviolent” offense for this limited purpose, but don’t count on it.
Typically, any aggravating circumstances wreck the deal. Drug possession is usually a pretrial diversion offense, except when the defendant possessed drugs near a school or another high-risk area.
Program requirements vary as well. Typically, defendants have about three months to perform community service, pay a small fee, and attend appropriate classes (e.g. a DUI victim impact panel). Furthermore, any additional arrests wreck the deal.
The outcome is always the same. At the end, prosecutors dismiss the case. The arrest record remains. Usually, if anyone asks questions, we tell our clients to say, “I hired a Marietta criminal defense lawyer, and the lawyer took care of it.”
Deferred Disposition
This special kind of probation is like enhanced pretrial diversion. Conditional dismissal is a no-risk proposition. If the defendant flunks out of the program, prosecutors simply pick up where they left off. Deferred disposition risk is considerably higher. More on that below.
Sometimes, prosecutors offer deferred disposition, even in first-time felony cases. Judges also have the discretion to grant deferred disposition, but once again, don’t count on it.
Deferred disposition probation is almost exactly like regular probation, with one important exception. When the defendant pleads guilty, the judge defers further proceedings until after the defendant completes probation. If the defendant successfully, the judge dismisses the case.
Now, for the high risk. If the defendant flunks out of the program, perhaps by catching a new case, the judge can sentence the defendant to anything up to the legal maximum. So, the risk is particularly high in felony cases.
Usually, a Marietta criminal defense lawyer must have an honest conversation with a defendant in these cases. Probation in Georgia is unusually long and difficult. Therefore, the chances of emerging on the other side with a near-perfect record are slim.
Probation Conversion
Deferred disposition coupled with probation conversion is a powerful combination. This conversion could be a relaxation of conditions or early termination.
Under Georgia law, judges have almost absolute discretion to relax or enhance the conditions of probation at almost any time. These conditions usually include:
- Reporting to a supervision officer,
- Avoiding further trouble with the law,
- Remaining current on child support and alimony obligations,
- Submitting to drug tests,
- Performing community service,
- Working and/or attending school full-time, and
- Remaining in the county.
The judge could modify these conditions (e.g. report once every three months instead of once a month). The judge could also convert the probation to unsupervised probation.
Furthermore, a recent law makes it easier to terminate probation early. This relief may be available after a short waiting period expires.
Probation conversion is also standalone relief. Shorter and/or easier probation reduces the likelihood of probation revocation. These matters are difficult to resolve.
Many times, the evidence is straightforward. Ben showed up for his appointment or he didn’t. In other cases, such as a failed drug test, the standard of proof is lower in probation revocation matters, making these cases easier to prove.
Record Restriction
Now, we move to more limited second chance opportunities. Expungement (record restriction) hides certain criminal records from public view. This process does not erase the record but restricts access to law enforcement and certain government agencies. So, for most purposes, the case was dismissed.
To be eligible, the charges must have been dismissed, closed without conviction, or the person must have completed a pretrial diversion or approved deferred disposition program. A pardon could also do the job. However, serious offenses like violent felonies and sex crimes are generally not eligible for restriction.
Procedurally, a Marietta criminal defense lawyer files a petition with the court or requests restriction via the arresting agency, depending on the case. Then, the Georgia Crime Information Center (GCIC) updates the record, so it no longer appears on most background checks.
Executive Pardon
Sometimes, a quarterback calls a Hail Mary pass. Most of them fail. Nevertheless, certain situations call for this play.
In Georgia, the State Board of Pardons and Paroles, not the governor, handles this form of official forgiveness. It’s a symbolic act that recognizes a person’s rehabilitation and good conduct following a criminal conviction. While it does not erase or expunge the conviction, a pardon can help restore certain civil rights and improve employment and licensing opportunities.
The SBPP does not have complete discretion to grant an executive pardon. The following qualifications apply:
- Completed all sentence requirements, including probation and parole (the SBPP cannot commute a sentence),
- No criminal activity for at least five consecutive years following the completion of the sentence,
- Demonstrated good conduct and rehabilitation (in the eyes of the Board), and
- No pending criminal charges.
Applicants must submit a written application to the Board of Pardons and Paroles, including documentation such as a personal statement, letters of support, and criminal history records.
Pardons automatically restore certain civil rights, such as the right to serve on a jury, run for or hold public office, and obtain certain professional licenses. A pardon does not automatically restore firearm rights. A separate application must be submitted to request the restoration of those rights.
Additionally, a pardon creates record restriction (expungement) eligibility for certain offenses that otherwise would not qualify, as outlined above.
Second chances are abundantly available in Georgia. For a free consultation with an experienced Marietta criminal defense attorney, contact The Phillips Law Firm, LLC. We routinely handle matters in Cobb County and nearby jurisdictions.
