You have inquired as to whether a defendant convicted of a misdemeanor offense may be sentenced pursuant to the First Offender Act, O.C.G.A. § 42-8-60 et seq. In your request, you have expressed concern that first offender treatment may only be available to a defendant that has committed felony offenses.

Official Code of Georgia Annotated § 42-8-60 provides:

(a) Upon a verdict or plea of guilty or a plea of nolo contendere, but before an adjudication of guilt, in the case of a defendant who has not been previously convicted of a felony, the court may, without entering a judgment of guilt and with the consent of the defendant: (1) Defer further proceeding and place the defendant on probation as provided by law; or (2) Sentence the defendant to a term of confinement as provided by law. (b) Upon violation by the defendant of the terms of probation, upon a conviction for another crime during the period of probation, or upon the court determining that the defendant is or was not eligible for sentencing under this article, the court may enter an adjudication of guilt and proceed as otherwise provided by law. No person may avail himself of this article on more than one occasion.

(c) The court shall not sentence a defendant under the provisions of this article and, if sentenced under the provisions of this article, shall not discharge the defendant upon completion of the sentence unless the court has reviewed the defendant's criminal record as such is on file with the Georgia Crime Information Center.

There is no language in the above statute limiting its application to felony offenses. Furthermore, I am aware of no other provision in Georgia law that operates to limit the Act to felonies. In the absence of any limiting language, the statute should be construed as applicable to both felony and misdemeanor offenses.

This construction is implicitly supported by O.C.G.A. § 40-6-391(f) which prohibits first offender treatment for persons convicted of operating a motor vehicle while under the influence of alcohol/drugs. That Code Section states that “[t]he provisions of . . . Article 3 of Chapter 8 of Title 42, relating to probation of first offenders, shall not apply to any person convicted of violating any provision of this Code section.” Since all violations of O.C.G.A. § 40-6-391 are misdemeanors, see O.C.G.A. § 40-6-391(c)(1-3), if first offender treatment were available only for felony offenses, the enactment of O.C.G.A. § 40-6-391(f) would have been unnecessary and mere surplusage. Under the rules of statutory construction, all related statutes must be construed together, giving meaning to each part of the statute, and avoiding constructions that result in surplusage and meaningless language. City of Buchanan v. Pope, 222 Ga. App. 716, 717 (1) (1996). Thus, the logical conclusion to be drawn from the enactment of O.C.G.A. § 40-6-391(f) is that first offender treatment is available for non-DUI misdemeanor offenses, unless otherwise prohibited by statute.

In addition to the above statutory support for this construction, both the Georgia Supreme Court and the Court of Appeals have reviewed cases where the appellants therein have been afforded first offender treatment for misdemeanor offenses. See Bowers v. Shelton, 265 Ga. 247 (1995) (Open Records Act case where misdemeanant was sentenced under the First Offender Act for failing to pay state income tax); Hardman v. State, 185 Ga. App. 519 (1988) (trial court did not abuse discretion in denying first offender treatment for three simple battery convictions; no implication in opinion that first offender treatment was legally unavailable and thus outside trial court’s sentencing discretion) (overruled on other grounds); Littlejohn v. State, 191 Ga. App. 852, 854 (8) (1989) (First Offender Act does not prohibit imposition of a fine for a misdemeanor offense sentenced pursuant to the Act); Trogdon v. State, 176 Ga. App. 246 (1985) (first offender treatment for misdemeanor violation of O.C.G.A. § 16-9-51). While in these opinions the courts have not squarely addressed your inquiry, at the same time the courts have not expressed any reservation as to the legitimacy of those first offender dispositions.

The reservation expressed in your letter arises from the opinion in Arrington v. State, 234 Ga. App. 187 (1998), where the Court of Appeals stated, in passing, that the provisions of the First Offender Act “are applicable only to felonies.” In Arrington the defendant pled guilty to one felony and several misdemeanors and was sentenced to five years probation on the felony under the First Offender Act and five consecutive 12-month probated sentences on the misdemeanors, to run consecutively to the felony sentence. After the defendant had completed the felony sentence, the trial court denied his request for first offender discharge, concluding that “the ten years of probation were intended to be one sentence.” Id. at 188. After noting that “each count of a multi-count indictment must be sentenced separately,” the Court of Appeals held that the defendant should have been discharged because the felony sentence, the only one for which he had received first offender treatment, had been completed. In reaching this decision, the Court of Appeals made no finding that the trial court had given first offender treatment for any of the misdemeanors. Thus, the statement that the First Offender Act provisions “are applicable only to felonies” is unnecessary to the holding since the Court of Appeals found that first offender treatment was given only for the felony. Therefore, as dicta, this language does not alter my construction of the First Offender Act as being applicable to misdemeanor sentences absent some contrary statutory provision.

Prepared by:

Assistant Attorney General