The option to utilize first offender in Georgia is a great opportunity for folks to have a second chance at keeping their criminal history clean. There are endless benefits to keeping a criminal record clean. Primarily among them:
- Keeping a job.
- Education doesn't face the same restrictions.
- May prevent negative effects of student loan eligibility.
- Can keep voting.
- May own/possess a firearm, etc.
This is certainly not an exclusive list but highlights some important benefits. A common problem, however, occurs in the following scenario:
Jim is charged with a felony. His Newnan defense attorney has negotiated a first offender plea and the sentence is going to be straight probation - so Jim is not going to jail. Jim enters the plea, the judge asks if he wants to use first offender and Jim indicates he does. Jim is sentenced to a period of probation but is not convicted of anything and nothing else happens. BUT something else should have happened...
What is the Problem?
The problem in the above-scenario is important. County clerks maintain files of all proceedings in criminal cases - including first offender pleas! So, even though a criminal background check may show no convictions if you are on, or have completed, first offender, the county clerk will still maintain your file. THIS FILE IS AVAILABLE TO THE PUBLIC!!
In many cases, the file is accessible online, and best case scenario your file (indicating that you pleaded under first offender to a felony) can be accessed by the public if they take a simple trip to the courthouse. So, even though you were told that this won't be on your record (accurate advise) that doesn't mean it won't be accessible by employers, loved ones, an ex during a custody dispute, or anyone else!
How Do I Truly Keep My First Offender Plea Out of Public View?
Georgia has provided a simple avenue by which you can prevent the public from having access to your records while you are on first offender. Our law provides that you may have the clerk's file placed under seal, meaning that no one can access it! Not employers, not suspicious love interests, not anyone. It is critical to securing your privacy.
A first offender plea generally should not be entered into without your lawyer filing an accompanying MOTION TO RESTRICT PUBLIC ACCESS TO RECORDS PURSUANT TO O.C.G.A. §42-8-62.1. That is fancy-talk for saying that a motion should be filed asking the court to make sure that no one can access your first offender records.
Does the Judge have to Order the Clerk to Seal My Record?
No. The judge doesn't have to grant your motion to seal your records. You should, however, make the judge tell you no. Your privacy is worth filing the motion. Your attorney will file the motion and then argue to the court why the motion should be filed. Typically, your newnan criminal defense lawyer will argue that your privacy interests outweigh the interest the public has in accessing your record.
Your attorney will then present the judge with a proposed order sealing your records, and, if the judge signs the order, then your privacy will be protected!
If you have questions about your case, or, if you didn't get your record sealed when you pleaded under first offender, then give us a call. Set up a consultation with us today - we can help you.