Category Archives: Criminal Defense

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Arrested in Gwinnett County for Marijuana Possession

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Being arrested can be a frightening experience, especially the first time.  For many people young and old, their first encounter with going to jail comes following an arrest for possession of marijuana (referred to in Georgia as a Violation of the Georgia Controlled Substances Act or VGCSA).  Individuals arrested in Gwinnett County generally will end up at the Gwinnett County Detention Center located off GA 316 at 2900 University Parkway in Lawrenceville, Georgia.  A list of active inmates at the jail can be found by clicking here.  The phone number of the jail is (770) 619-6500.

Despite laws around the country legalizing the use of marijuana under varying circumstances, the use of marijuana remains illegal in most situations in Georgia.  House Bill 1 was passed by the 2015-2016 Georgia General Assembly and signed into law by Governor Nathan Deal.  This law allows for very limited use of cannabis oil by individuals suffering from very serious medical conditions.  Other than those exceptions, the use of marijuana for recreational purposes remains outlawed.

So, you or a loved one has been arrested for possession of marijuana in Gwinnett County and want to know what happens next.  For county cases, you will likely be required to appear first in the Gwinnett County Recorders Court.  It is possible the case will be heard in the Gwinnett County State Court, or the Gwinnett County Superior Court for felony charges.

The Hernan Law Firm can assist you in identifying whether or not you have defenses to the charge.  For example: (i) you were not actually in possession of marijuana, (ii) the substance was not properly handled or tested, or (iii) the search that resulted in the discovery of the marijuana was illegal.  The weakness or strength of the evidence plays a key role in the negotiation of the case with the prosecutor.  During a free consultation with Jamie Hernan of the Hernan Law Firm, you or your loved one can discuss the many options and potential outcomes for your case.

Pre-Trial Diversion

For many first time offenders, a pre-trial diversion program may be an option.  With a pre-trial diversion program, individuals are given certain conditions to meet in exchange for a dismissal of the charge and restriction of their criminal history (formerly referred to as expungement in Georgia and discussed in more detail below).

Conditional Discharge by Statute

If you or your loved one has been previously convicted of an offense or completed a diversion program, the pre-trial diversion program will likely not be an option; however, you or your loved one may be eligible for a statutory program based on Georgia Code section 16-13-2.  That provision of the law allows a court, in its discretion, to conditionally discharge drug offenses or nonviolent property offenses that are related to an individual’s addiction to a controlled substance or alcohol. A conditional discharge under this provision generally involves a plea of guilty which is withheld by the judge while the individual meets the condition of their sentence.  If they successfully complete the terms of the sentence, the case is discharged without adjudication of guilt.  Please note that a conditional discharge may have serious immigration consequences even if the case is ultimately discharged.

Georgia’s First Offender Statute

If a pre-trial diversion program or a plea pursuant to OCGA 16-13-2 are not options, Georgia’s first offender statute may be considered.  Normally, this statute is used by individuals charged with a felony; however, it may be used on certain misdemeanors including drug offenses.  Georgia Code section 42-8-62 allows for the discharge without adjudication of guilt of a felony charge (or misdemeanor) for individuals who have never before been convicted of a felony.  Judges have the discretion to grant first offender status or deny it.  Many judges will discourage the use of the first offender statute on a misdemeanor charge because once it has been used it can never be used again.

Criminal History

If you or your loved one was fingerprinted in connection with the charge of marijuana possession, the charge will immediately show up on your criminal history as an arrest; however, no disposition will be posted until the case is resolved.  If you were given a citation but not arrested, the charge will not appear on your criminal history until you are convicted or otherwise required to get fingerprinted in connection with the case.  If the case is dismissed and you or your loved one is eligible for record restriction, the process is supposed to occur automatically and the law requires the prosecuting agency to submit evidence of the eligibility for record restriction to the Georgia Crime Information Center that oversees criminal histories in Georgia.

 

Call The Hernan Law Firm right now at (678) 275-4000 if you or a loved one were arrested for possession of marijuana in Gwinnett County, or anywhere in Georgia.

We look forward to serving you and delivering justice in your case.  

 

Important Disclaimer: The information provided in this message was based on information available at the time of its posting and its accuracy cannot be guaranteed at any later time.  Nothing contained herein should be considered by you to be specific legal advice.  For advice regarding your specific case, please contact the Hernan Law Firm at (678) 275-4000.  No attorney-client privilege is created by the posting of this message or your use of this website.  In order to engage the services of the Hernan Law Firm, a written engagement agreement must be signed by both you and Jamie B. Hernan.

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Arrested for Shoplifting in Roswell Municipal Court

Being arrested for shoplifting can be a frightening experience. A theft charge on an arrest record and a related conviction can have devastating effects on an individual’s ability to seek or maintain employment and pass background screenings. Understanding that, certain courts in Georgia have diversion programs designed to allow first time offenders to have their case dismissed if they meet certain requirements (such as attending a class, performing community service and paying a program fee).

City of Roswell Municipal Court

The City of Roswell has a pre-trial diversion program for first time shoplifting offenders. If an individual has a clean record (no prior convictions), and has not taken advantage of a pre-trial diversion program in the past, with the assistance of an attorney the individual may be eligible for the pre-trial program. As part of the program, the individual will sign a form outlining the terms of the program and meet with a probation officer who will supervise their progress (the individual is not on probation but rather just supervised by the probation office).  As part of Roswell’s pre-trial diversion program, the individual charged with shoplifting will not go before the judge unless they are kicked out of the program for failing to successfully complete the requirements.  Roswell requires participants to attend a class, perform community service and pay a program fee.  Their case is generally reset for approximately twelve to sixteen weeks in order to allow them time to complete the requirements.  As long as they successfully complete the requirements, the case will be dismissed. If the individual does not successfully complete the requirements in the time provided, the case will generally be placed back on the court’s calendar for continued prosecution.

Jamie Hernan, of the Hernan Law Firm, has been successfully representing individuals in the City of Roswell Municipal Court for over a decade and can help those facing charges in the court (whether or not it is for their first offense). For a free consultation about a charge of shoplifting in the City of Roswell Municipal Court, or any other charge, call the Hernan Law Firm at (678) 275-4000.

More information about the law regarding shoplifting in Georgia

Georgia Code section 16-8-14 sets forth the elements of the offense of shoplifting and outlines certain requirements upon conviction. The offense of theft by shoplifting can be charged as a felony or misdemeanor depending on the amount that the individual is accused of stealing and the number of times they have been convicted of shoplifting. If the amount alleged to have been taken exceeds Five Hundred Dollars ($500.00), the case will proceed (at least initially) as a felony. Cases involving amounts less than Five Hundred Dollars ($500.00) will be treated as a misdemeanor. The fourth and subsequent convictions for shoplifting (whether or not the previous convictions were felonies or misdemeanors) will be treated as a felony.

The Georgia Code (Official Code of Georgia Annotated) can be accessed at http://www.lexisnexis.com/hottopics/gacode/.


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Arrested for Shoplifting in Milton Municipal Court – Georgia

Being arrested for shoplifting can be a frightening experience. A theft charge on an arrest record and a related conviction can have devastating effects on an individual’s ability to seek or maintain employment and pass background screenings. Understanding that, certain courts in Georgia have diversion programs designed to allow first time offenders to have their case dismissed if they meet certain requirements (such as attending a class, performing community service and paying a program fee).

City of Milton Municipal Court

The City of Milton has a diversion program called a Hold & Clear program. If an individual has a clean record (no prior convictions), and has not taken advantage of a pre-trial diversion program in the past, with the assistance of an attorney the individual may be eligible for the Hold & Clear program. As part of the program, the individual will go before the judge and enter a plea of guilty; however, the judge will hold the guilty plea and provide a set of requirements (which will have been previously negotiated with the prosecutor) for the individual to complete. As long as they successfully complete the requirements, the case will be dismissed. If the individual does not successfully complete the requirements in the time provided, the guilty plea will be entered and the conviction will be reported to the state and posted to the individual’s criminal history.

Jamie Hernan, of the Hernan Law Firm, has been successfully representing individuals in the City of Milton Municipal Court since the court was formed at the inception of the city in 2006 and can help those facing charges in the court (whether or not it is for their first offense). For a free consultation about a charge of shoplifting in the City of Milton Municipal Court, or any other charge, call the Hernan Law Firm at (678) 275-4000.

More information about the law regarding shoplifting in Georgia

Georgia Code section 16-8-14 sets forth the elements of the offense of shoplifting and outlines certain requirements upon conviction. The offense of theft by shoplifting can be charged as a felony or misdemeanor depending on the amount that the individual is accused of stealing and the number of times they have been convicted of shoplifting. If the amount alleged to have been taken exceeds Five Hundred Dollars ($500.00), the case will proceed (at least initially) as a felony. Cases involving amounts less than Five Hundred Dollars ($500.00) will be treated as a misdemeanor. The fourth and subsequent convictions for shoplifting (whether or not the previous convictions were felonies or misdemeanors) will be treated as a felony.

The Georgia Code (Official Code of Georgia Annotated) can be accessed at http://www.lexisnexis.com/hottopics/gacode/.


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Arrested for Shoplifting in Alpharetta Municipal Court – Georgia

Being arrested for shoplifting can be a frightening experience.  A theft charge on an arrest record and a related conviction can have devastating effects on an individual’s ability to seek or maintain employment and pass background screenings.  Understanding that, certain courts in Georgia have diversion programs designed to allow first time offenders to have their case dismissed if they meet certain requirements (such as attending a class, performing community service and paying a program fee).

City of Alpharetta Municipal Court

The City of Alpharetta has a diversion program called a Hold & Clear program.  If an individual has a clean record (no prior convictions), and has not taken advantage of a pre-trial diversion program in the past, with the assistance of an attorney the individual may be eligible for the Hold & Clear program.  As part of the program, the individual will go before the judge and enter a plea of guilty; however, the judge will hold the guilty plea and provide a set of requirements (which will have been previously negotiated with the prosecutor) for the individual to complete.  As long as they successfully complete the requirements, the case will be dismissed.  If the individual does not successfully complete the requirements in the time provided, the guilty plea will be entered and the conviction will be reported to the state and posted to the individual’s criminal history.

Jamie Hernan, of the Hernan Law Firm, has been successfully representing individuals in the City of Alpharetta Municipal Court for over a decade and can help those facing charges in the court (whether or not it is for their first offense).  For a free consultation about a charge of shoplifting in the City of Alpharetta Municipal Court, or any other charge, call the Hernan Law Firm at (678) 275-4000.

More information about the law regarding shoplifting in Georgia

Georgia Code section 16-8-14 sets forth the elements of the offense of shoplifting and outlines certain requirements upon conviction.  The offense of theft by shoplifting can be charged as a felony or misdemeanor depending on the amount that the individual is accused of stealing and the number of times they have been convicted of shoplifting.  If the amount alleged to have been taken exceeds Five Hundred Dollars ($500.00), the case will proceed (at least initially) as a felony.  Cases involving amounts less than Five Hundred Dollars ($500.00) will be treated as a misdemeanor.  The fourth and subsequent convictions for shoplifting (whether or not the previous convictions were felonies or misdemeanors) will be treated as a felony.

The Georgia Code (Official Code of Georgia Annotated) can be accessed without charge by clicking here.


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First Offender Pleas in the State of Georgia

First Offender Pleas in the State of Georgia

Despite its significant pitfalls and severe consequences for non-compliance with sentence conditions, the State of Georgia’s First Offender Act provides individuals not previously convicted of a felony with the opportunity to plead guilty to a criminal charge, pursuant to the provisions of the law, and avoid adjudication of guilt if they comply with the conditions of their sentence.  Recognizing the need to provide certain individuals who have not previously been convicted of a felony with the opportunity for a second chance, the State of Georgiaenacted the provisions of Georgia Code (O.C.G.A.) §42-8-60 et. seq. The provisions of the First Offender Act are available for most charges; however, it does not apply to serious violent felonies and does not exempt sexual offender registration requirements or disclosure for background checks for individuals seeking employment providing care for minor children or the elderly.

Following the plea of guilty under the First Offender Act, the judge withholds the adjudication of guilt that would normally follow and instead defers judgment in the case and sentences the Defendant to a term of probation or incarceration (or a combination of both) along with other conditions of the sentence. Upon successful completion of the sentence conditions, a discharge is filed which “completely exonerates the defendant of any criminal purpose and shall not affect any of his or her civil rights or liberties.” Accordingly, the individual does not have a criminal conviction in connection with the case pled under the First Offender Act and, thus, isnota convicted felon, may continue to vote, own or possess lawfully a firearm, and maintain other rights or liberties that would be lost with a felony conviction. 

The Cost of Exoneration

The First Offender Act does not, however, provide a Get Out of Jailfreecard. In fact, the potential for complete exoneration comes at a potentially hefty cost. As set forth in O.C.G.A. 42-8-60(b), a violation of the terms of the first offender sentence affords the court the opportunity to enter the adjudication of guilt and sentence the Defendant to the maximum punishment allowable under the law. By contrast, with a traditional sentence a violation of the terms of probation can result in a revocation of only the remaining term of probation. 

What is Probation?

It is important to note that probation is essentially a sentence of confinement that allows a Defendant to serve the allotted time outside of jail as long as they meet certain conditions. Upon a violation of those conditions, the probation can be revoked and the Defendant sentenced to confinement for any period of time up to the remaining term of probation. 

By contrast, a sentence of probation under the First Offender Act operates under different rules. Violations of probation in such cases (or conviction of another crime, which would likely be a violation of probation) can result in the judge sentencing the offender to the maximum term allowable based on the charge, even if that sentence would result in confinement for a period longer than the original probated sentence.

As a hypothetical example, Defendant X pleads guilty to felony burglary in violation of O.C.G.A. Section 16-7-1 and is sentenced to three years probation under the First Offender Act.  Two years into his sentence he violates the terms of his probation.  Defendant Y also pleads guilty to felony burglary, but he agrees to a traditional plea of guilty without invoking the benefits of the First Offender Act and is sentenced to three years probation.  Two years into his sentence he violates the term of his probation.  Both Defendants go before the same judge on the same day for probation revocation hearings.  The judge can adjudicate Defendant X as guilty and sentence him to as much as twenty (20) years in prison, likely with credit for time served.  On the contrary, Defendant Y may have his probation revoked; however, the judge can only sentence him to the one year of confinement remaining in his original probated sentence.   

Due Process

During a plea under the First Offender Act, the prosecutor will usually require the Defendant to state on the record that s/he has not pled guilty or been otherwise convicted of a felony in the past and that s/he has never used first offender protection. To ensure that the Defendant understands the ramifications of a plea under the First Offender Act, both good and potentially bad, the presiding judge will likely inquire of the Defendant on the record whether s/he understands the benefits and drawbacks of the program. In the event that a otherwise eligible individual is pleading guilty to a felony and electing not to use the provisions of the First Offender Act, the judge will likely also have the Defendant state on the record that they do not want to be afforded first offender status.


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Bond set at $1,000,000 for George Zimmerman

The judge in the George Zimmerman case, Seminole County, Florida Circuit Judge Kenneth Lester, Jr., ordered George Zimmerman’s bond to be set at $1,000,000 with additional conditions including electronic monitoring, restrictions on leaving Seminole County, Florida without permission, check ins required every forty eight hours, curfew between 6:00pm and 6:00am, as well as requirements that he not enter the Orlando-Sanford International Airport, open or maintain a bank account, or apply for or obtain a passport. According to the judge’s order, the “increased bail is not a punishment; it is meant to allay [the] Court’s concern that [George Zimmerman] intended to flee the jurisdiction and a lesser amount would not ensure his presence in court.”

A bond is set in a criminal matter in an amount reasonably determined by the judge to be sufficient to deter the Defendant from absconding and failing to return to Court. If a criminal Defendant bonds out of jail and subsequently fails to appear in Court, in most circumstances the judge can order that the bond be forfeited. Courts reason that if bonds are too low on serious charges, a criminal Defendant could decide that they would rather forfeit the money paid for the bond rather than return to the Court.

Zimmerman’s bond was increased after initially being set at $150,000 and subsequently revoked after the State of Florida sought revocation of the bond based on the allegation that the Defendant had presented false testimony at the initial bond hearing. In the latest bond order, Judge Lester, Jr. stated that the Defendant “has flaunted the system” and that a higher bond was appropriate in this case. The eight page bond order outlines in extensive detail the analysis followed by the Court in determining the bond amount. The Court considered the nature and circumstances of the offense charged, the weight of the evidence against the Defendant, the Defendant’s ties to the community, employment history, financial resources and mental condition, the Defendant’s past and present conduct, whether the Defendant is a danger to the community, the source of funds to post bail, the probability that the Defendant would pose a threat to the victim’s family (noting that the Court found no evidence that the Defendant would pose any threat), whether the Defendant had committed a new crime while on pre-trial release, and the ability of the Defendant to pay the bail (noting that “setting an excessive bail is the functional equivalent of setting no bail at all.”


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