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GA Court of Appeals: No First Offender in Sex Offense Cases

March 20, 2013

In Tew v. State, the Georgia Court of Appeals has interpreted the legislative intent of O.C.G.A. § 17-10-6.2(c) and concluded that while the statute permits a trial court to deviate from the mandatory minimum sentencing provisions with respect to sexual offenses, the statute does not permit the court to impose a sentence under the first offender act.

This is contrary to the interpretation of many Superior Court judges throughout Georgia who have concluded that the plain language of the statute permits them to grant a defendant first offender status if the requisite factors to deviate are satisfied.

Tew entered a guilty plea to statutory rape stemming from consensual sexual intercourse that he engaged in with a 14 year-old girl. Tew was 22 years old at the time he committed the offense. At the time of sentencing, Tew requested that he be sentenced as a first offender pursuant to O.C.G.A. § 42-8-60. Tew argued that O.C.G.A. § 17-10-6.2(c) granted the trial court discretion to sentence him as a first offender if certain factors were found by the court. The State disagreed and opposed first offender treatment. After a lengthy debate between the parties, the trial court ultimately sentenced Tew to serve 10 years on probation but refused his request to be sentenced under the first offender act.

On appeal, Tew argued that trial court erroneously deemed him ineligible for first offender treatment. Tew claimed that under Georgia law, the trial court is permitted to exercise its discretion to treat him as a first offender.

O.C.G.A. § 17-10-6.2(b) provides that someone convicted of a sexual offense shall be sentenced to the mandatory minimum term of imprisonment provided by law and that no part of this mandatory minimum sentence may be probated by the court. Subsection (b) also states that no one convicted of a sexual offense may be sentenced under the first offender act. Despite this rigid language, O.C.G.A. § 17-10-6.2(c) indicates that the court may “deviate from the mandatory minimum sentence as set forth in subsection (b) of this Code section, or any portion thereof” if the defendant satisfies certain other criteria listed in the statute.

On appeal, Tew argued that the clause “or any portion thereof” applied to the entirety of subsection (b), including the provision regarding first offender treatment—meaning that the trial court could choose to deviate by imposing a sentence below the mandatory minimum for the crime charged as well as sentencing the defendant as a first offender. The Court of Appeals disagreed with this interpretation of the statute, instead finding that the clause “or any portion thereof” applied only to the first two sentences of section (b)—meaning that the trial court could deviate only by imposing a sentence below the mandatory minimum.

In analyzing the statute, the Georgia Court of Appeals found that the phrase “or any portion thereof” was intended to modify the phrase directly preceding it, referring to the mandatory minimum sentence only and not the entirety of section (b), encompassing first offender treatment. The Court also compared O.C.G.A. § 17-10-6.2 to O.C.G.A. § 42-8-60, the Georgia first offender act, which states that no person convicted of a sex offense may be granted first offender status. Attempting to “harmonize” the legislative intent of each of these statutes, the Court concluded the better interpretation of O.C.G.A. § 17-10-6.2(c) was to find that it did not permit the granting of first offender status in sex offense cases.

Since the statute’s enactment in 2006, many criminal defendants in Georgia have been sentenced under the first offender act for sex offenses based on a reasonable interpretation of the statute. These first offender dispositions have been approved by the state and reflected on the defendants’ criminal history records. As a result of the Court of Appeals’ decision in this case, the first offender status of these defendants will now be in jeopardy as the State may now seek to vacate their sentences.

A sentence under the first offender act carries great significance in a sex offense case in that (1) it permits a defendant’s adjudication of guilt to be withheld thereby enabling him to complete the sentence without becoming a convicted felon, and (2) pursuant to O.C.G.A. 42-1-12(a)(8), it permits a defendant to be removed from the sex offender registry upon successful completion of his sentence.

Therefore, this decision will have an enormous impact on the rights of criminal defendants, past and present, throughout the State of Georgia. As a result, our firm has agreed to get involved in this case in an effort to convince the Georgia Supreme Court to reverse the Court of Appeals’ decision.

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