Criminal cases do not end when the judge pronounces sentence or, in deferred disposition probation cases, accepts the defendant’s guilty plea or jury verdict. In many ways, the case is just beginning. Probation is unusually long and restrictive in Georgia.
Most drivers cannot go more than two or three blocks without violating at least one traffic law. They just don’t get caught very often. Likewise, most probationers cannot go more than two or three months without violating at least one condition of probation. These individuals almost always get caught.
Post-trial matters are not always bad. In addition to probation revocation, other post-trial matters include successful appeals, probation modification or diacharge, and record restriction. More on these things below.
To a good Marietta criminal defense lawyer, an attorney-client relationship is just that. Ideally, the same lawyer should handle criminal pretrial matters as well as criminal post-trial matters. This long-term relationship means defendants don’t have to start over with new lawyers. In all areas of life, continuity usually produces better results.
How Criminal Appeals Work in Georgia
Successful criminal appeals are few and far between. In most ccases, as one of our law school professors stated, defendants only get one trip to the salad bar of justice.
Over 90 percent of criminal cases are not appealable, at least in most cases. Guilty pleas are final, unless a Marietta criminal defense lawyer finds an obscure loophole. Ineffective assistance of counsel is the most common one.
Most courts use the glass mirror test in these cases. If someone put a glass mirror under the lawyer’s nose and the glass fogs up, the defendant had effective assistance of counsel.
If the case is appealable, a Marietta criminal defense lawyer must prove that someone, usually the judge, committed a serious error during the pretrial process or the trial itself, and that error changed the outcome of the case. Courts have consistently held that defendants are entitled to fair trials, but not perfect trials.
Probation Revocation
As mentioned, probation conditions are unusually restrictive in Georgia. Common probation violations include:
- Catching a New Case: If probationers are arrested, there’s not much any Marietta criminal defense lawyer can do to eliminate negative cconsequences. Damage control is usually the best outcome in these situations.
- Failure to Report: Most probationers must report to supervision officers at least twice a month. Supervision check-ins are not dental appointments. They cannot be scheduled or re-scheduled at the defendant’s convenience. However, when a defendant misses a meeting, a lawyer can usually get that meeting re-scheduled.
- Failed Drug Test: “Failing” a drug test could mean not taking a test when required. Not everyone can drop everything and comply with a random drug test request. Failed tests often have technical or legal issues that render the results invalid.
- Broken Offense-Sepcific Condition: A keep-away order in an assault case, which is basically a protective order, may be the most common offense-specific condition. Others include an Ignition Interlock Device in a DUI and drug treatment in a drug possession case.
We should pause for a moment and discuss civil protective orders, which are common parts of probation and domestic battery cases.
If available, alleged victims should always obtain protective orders. These orders aren’t merely pieces of paper. They put third parties, like schools, on notice of the problem. Furthermore, peace officers are more likely to enforce a protective order, which has the same effect as a court order, than respond to a disturbance call and listen to a he said-she said diatribe.
From a defendant’s standpoint, protective order requests are not inevitable matters. A Marietta criminal defense lawyer has some options, even if the underlying facts are true as alleged.600
Probation Modification and Early Discharge in Georgia
Judges have almost absolute discretion to tighten the probation screws, or loosen them, at almost any time.
Frequent modifications include adjusting reporting requirements, altering community service hours, and removing specific restrictions. Modifications may be requested by the probation officer, the prosecutor, or the defendant (through a Marietta criminal defense lawyer). The court typically considers factors such as compliance with probation terms, rehabilitation progress, and the overall safety of the community before approving any changes.
A probation discharge (early termination) ends probation before the original expiration date. Under O.C.G.A. § 42-8-37, the court may discharge a person after s/he has completed at least three years of felony probation (or less for misdemeanors), paid all restitution, and complied with all conditions. The Department of Community Supervision (DCS) can also recommend early termination for individuals who meet specific eligibility criteria under Georgia’s probation reform laws, such as the 2017 and 2021 reforms promoting shorter supervision for compliant individuals.
How Record Restriction (Expungement) Works in Georgia
Under O.C.G.A. § 35-3-37, a person may request record restriction if the case was dismissed, a court returned a not guilty, or the conviction qualifies for restriction after a set period. Most often, cases that end without a conviction are eligible automatically after the case is closed. For certain convictions, individuals may petition the court for restriction after completing their sentences and demonstrating rehabilitation.
In 2020, Georgia’s Second Chance Law expanded access to record restriction. Some misdemeanor convictions, such as shoplifting, simple battery, or drug possession, are eligible for retrictyion regardless of the disposition, after a waiting period (usually four years) expires and to be restricted after four years with no further offenses. Serious violent felonies, sex crimes, and DUIs are not eligible. Once restricted, the record will not appear in public background checks for employment or housing, giving individuals a fresh start.
To request restriction, eligible individuals can apply through the arresting agency or file a petition in the appropriate court. Having an attorney can help ensure proper documentation and increase the likelihood of approval. Record restriction in Georgia is a vital step toward reducing barriers to employment, education, and housing for rehabilitated individuals.
Quick investigations and quick arrests often don’t hold up in court. For a free consultation with an experienced Marietta criminal defense attorney, contact The Phillips Law Firm, LLC. Convenient payment plans are available.
