Benton v. State

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
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official text of the opinion.

In the Supreme Court of Georgia

Decided: August 23, 2020

S22G0104. BENTON v. THE STATE.

BETHEL, Justice.

Georgia law provides that, with certain exceptions not

applicable here, any person who has previously been convicted of

three felonies shall, upon conviction of a subsequent felony “serve

the maximum time provided in the sentence of the judge based upon

such conviction and shall not be eligible for parole until the

maximum sentence has been served.” OCGA § 17-10-7 (c). Prior to

his conviction for aggravated assault in this case, Turner Benton

had been found guilty of three other felony offenses. However, for

the first of those offenses, he was sentenced under Georgia’s First

Offender Act and placed on probation. We granted Benton’s petition

for a writ of certiorari in this case to consider whether his first-

offender sentence became a “conviction” for purposes of OCGA § 17-
10-7 (c) when the record shows that his probation was revoked by

the court multiple times but where there was no adjudication of

guilt. In the case before us, the trial court ruled that it did, and the

Court of Appeals affirmed. See Benton v. State, 361 Ga. App. 19, 19-

21 (1) (861 SE2d 672) (2021).

However, as we explain more fully below, for his first offense,

the court’s revocation orders served only to revoke Benton’s

probation, not his status as a first offender. Thus, upon the

completion of his first-offender sentence, Benton was exonerated of

the underlying offense by operation of law. We therefore determine

that the trial court and the Court of Appeals erred in their

determinations that Benton had been convicted of three felonies

prior to his conviction in this case. Accordingly, we reverse the

decision of the Court of Appeals and remand this case with direction

that Benton’s sentence in this case be vacated and that he be

resentenced.

1. Background

As recounted by the Court of Appeals,

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 [v]iewed in the light most favorable to the jury’s verdict,
the evidence shows that on July 4, 2017, Tyrone Ransom
was working in a convenience store when Benton
approached him and appeared to be irritated. Benton
accused Ransom of stealing his weed whacker and
demanded that he admit it; but Ransom adamantly
denied the allegation. The dispute then escalated, and the
two men began fighting. And at some point during the
altercation, Benton retrieved a knife from his pocket and
stabbed Ransom, who was unarmed and unaware that
Benton had a weapon. The entire altercation was
recorded by surveillance cameras. Thereafter, Benton
was charged with two counts of aggravated assault. And
following a jury trial, Benton was convicted of one of those
charges and acquitted of the other.[ 1] Benton then filed a
motion for a new trial, and after a hearing, the trial court
denied it.

(Footnote omitted.) Benton, 361 Ga. App. at 19 (1). The trial court

later sentenced Benton as a recidivist under OCGA § 17-10-7 (a)2

1 The first count was for aggravated assault with intent to murder, and
the second count was for aggravated assault with a deadly weapon. The jury
found Benton not guilty of the first count and guilty of the second count.
2 OCGA § 17-10-7 (a) provides:

Except as otherwise provided in subsection (b) or (b.1) of this Code
section, any person who, after having been convicted of a felony
offense in this state or having been convicted under the laws of any
other state or of the United States of a crime which if committed
within this state would be a felony and sentenced to confinement
in a penal institution, commits a felony punishable by confinement
in a penal institution shall be sentenced to undergo the longest
period of time prescribed for the punishment of the subsequent
offense of which he or she stands convicted, provided that, unless

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and (c)3 to serve a term of 20 years — 15 years in prison and five

years on probation.

Benton argued in his motion for new trial and before the Court

of Appeals that the trial court erred by sentencing him under OCGA

§ 17-10-7 (c) because the State failed to prove that he had three prior

felony convictions. In support of its request that Benton be

sentenced as a recidivist, the State presented certified copies of his

convictions for three prior felonies: (1) a July 1990 conviction for the

sale of a controlled substance, (2) a September 1998 conviction for

possession of a controlled substance, and (3) an October 2012

conviction for aggravated assault. Benton conceded that he was

otherwise provided by law, the trial judge may, in his or her
discretion, probate or suspend the maximum sentence prescribed
for the offense.
3 OCGA § 17-10-7 (c) provides:

Except as otherwise provided in subsection (b) or (b.1) of this Code
section and subsection (b) of Code Section 42-9-45, any person who,
after having been convicted under the laws of this state for three
felonies or having been convicted under the laws of any other state
or of the United States of three crimes which if committed within
this state would be felonies, commits a felony within this state
shall, upon conviction for such fourth offense or for subsequent
offenses, serve the maximum time provided in the sentence of the
judge based upon such conviction and shall not be eligible for
parole until the maximum sentence has been served.
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involved in the three prior felony cases, but argued before the Court

of Appeals that, as to the July 1990 case, he was sentenced as a first

offender and later exonerated of that offense under the First

Offender Act when he completed his sentence without revocation of

his first-offender status.

As to the conviction at issue, the Court of Appeals noted that

Benton pleaded guilty in 1990 to selling a controlled
substance, and he was sentenced as a first offender to five
years, with six months to be served in confinement and
the remainder on probation. This much is undisputed
between the parties. Benton also acknowledges that three
different petitions for adjudication of guilt and imposition
of sentence were filed as to that conviction, alleging that
he violated his probation in various respects.[4]

Benton, 361 Ga. App. at 20-21 (1).

Benton argued that he was ultimately exonerated of his 1990

conviction under OCGA § 42-8-60 (e) (1)5 because, even though his

4 Orders on those petitions were entered on October 16, 1990, August 1,
1991, and March 1, 1992.
5 OCGA § 42-8-60 (e) (1) provides:

A defendant sentenced pursuant to [Article 3, regarding first offenders]
shall be exonerated of guilt and shall stand discharged as a matter of law
as soon as the defendant . . . [c]ompletes the terms of his or her probation,
which shall include the expiration of the sentence by virtue of the time
frame of the sentence passing, provided that such sentence has not
otherwise been tolled or suspended[.]
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probation was revoked on three occasions, his first-offender status

was never actually revoked by the trial court. However, the Court of

Appeals determined that “this contention is belied by the record,”

noting that “the record includes three different orders in that case

revoking Benton’s probation.” Id. at 21 (1). The Court of Appeals

concluded that

[i]n any event, Benton’s probation in the 1990 case was
revoked, he was not exonerated under OCGA § 42-8-60
(e), and thus, the conviction qualifies as a prior felony
conviction such that the trial court did not err in
sentencing him as a recidivist under OCGA § 17-10-7 (c).

(Emphasis omitted.) Id.

2. Analysis

Under Georgia’s First Offender Act,

[w]hen a defendant has not been previously convicted of a
felony, the court may, upon a guilty verdict or plea of
guilty or nolo contendere and before an adjudication of
guilt, without entering a judgment of guilt and with the
consent of the defendant, defer further proceedings and
[p]lace the defendant on probation; or [s]entence the
defendant to a term of confinement.

OCGA § 42-8-60 (a). Thus, a first offender’s guilty plea or a verdict

of guilt against him does not immediately constitute a “conviction”

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as that term is defined in Georgia’s Criminal Code. See Davis v.

State, 273 Ga. 14, 15 (537 SE2d 663) (2000). See also OCGA § 16-1-

3 (4) (defining “conviction” as including “a final judgment of

conviction entered upon a verdict or finding of guilty of a crime or

upon a plea of guilty.”). Instead, Georgia law affords a first-time

offender the opportunity to be exonerated if he or she satisfies the

other conditions of the First Offender Act: completion of the term of

probation, release by order of the court prior to the termination of

probation under certain statutes, or release from confinement and

parole, provided the defendant is not serving a split sentence. See

OCGA § 42-8-60 (e).6 Thus, as we have noted, the First Offender Act

“permits the offender complete rehabilitation without the stigma of

a felony conviction.” State v. Wiley, 233 Ga. 316, 317 (210 SE2d 790)

(1974).

However, a defendant’s first-offender status may be revoked by

the trial court. OCGA § 42-8-60 (d) provides that

6 Notably, OCGA § 42-8-60 (e) does not require, as a condition of
exoneration, that a first offender not have his probation revoked during the
term of the first-offender sentence.
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 [t]he court may enter an adjudication of guilt and proceed
to sentence the defendant as otherwise provided by law
when the . . . [d]efendant violates the terms of his or her
first offender probation; . . . [the d]efendant is convicted
for another crime during the period of his or her first
offender sentence; or . . . [the c]ourt determines that the
defendant is or was not eligible for first offender
sentencing[.]

This statutory language answers the question in this case. It

says that “when the . . . [d]efendant violates the terms of his or her

first offender probation,” “[t]he court may enter an adjudication of

guilt and proceed to sentence the defendant . . . .” OCGA § 42-8-60

(d) (emphasis added). So the violation of a first offender’s probation

ordered as part of his sentence under OCGA § 42-8-60 (a) does not

automatically result in a conviction or preclude his exoneration by

operation of law under that provision. See Ailara v. State, 311 Ga.

App. 862, 864 (717 SE2d 498) (2011) (noting distinction between

revocation of first-offender probation and status). Instead, it is a

condition which, if met, gives the court discretion to enter an

adjudication of guilt. See Bliss v. State, 244 Ga. App. 160, 160 (535

SE2d 251) (2000). If a court exercises its discretion not to enter that

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judgment, the first offender is still eligible for exoneration by

operation of law under OCGA § 42-8-60 (e) once the listed statutory

conditions are met. Thus, the Court of Appeals erred by treating

revocation of Benton’s probation as revocation of Benton’s first-

offender status, i.e., entering an adjudication of guilt.

Although, in this case, the State initially advanced the

argument that the Court of Appeals adopted in its opinion, the State

now concedes that the Court of Appeals erred in its ruling. As the

State rightly notes in its brief before this Court, a court’s revocation

of probation ordered as part of a first-offender sentence cannot be

the basis for recidivist punishment under OCGA § 17-10-7 (c),

absent an adjudication of guilt and the imposition of a sentence

under OCGA § 42-8-60 (d) as to the offense once subject to first-

offender treatment. See Davis, 273 Ga. at 15. In the absence of such

an adjudication and sentence, OCGA § 42-8-60 (e) provides that the

first-offender defendant “shall be exonerated of guilt and shall stand

discharged as a matter of law” as soon as the enumerated statutory

conditions are met. See Collins v. State, 338 Ga. App. 886, 889 (792

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SE2d 134) (2016) (“Under the First Offender Act, a person is either

exonerated of guilt and stands discharged as a matter of law upon

completion of the term of [the first-offender sentence] . . . or

adjudicated guilty in a petition filed prior to the expiration of the

sentence . . . [T]he statute does not provide for any other

alternative.” (footnote omitted)). Moreover, contrary to the

conclusion of the Court of Appeals, see Benton, 361 Ga. App. at 20-

21, a first offender can be exonerated of his first offense even when

his probation is revoked. In that circumstance, the first offender,

during any period in which probation is revoked, simply serves time

in prison, as provided in the first-offender sentence imposed by the

court. See Ailara, 311 Ga. App. at 864; OCGA § 42-8-60 (a) (2). A

different panel of the Court of Appeals rightly reached this

conclusion not long after Benton was decided. See Giles v. State, 362

Ga. App. 237 (867 SE2d 840) (2022).7

7 It appears there may be some confusion stemming from prior decisions
of this Court and the Court of Appeals, including Davis and Collins, that use
the term “probation” to describe both any term of probation ordered by a court
as part of a first-offender sentence under OCGA § 42-8-60 (a) and the

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 Here, Benton’s probation in the 1990 case was revoked (and

apparently reinstated) on three occasions by the court. However, the

record contains nothing showing that his status as a first offender

“probationary” nature of first-offender status generally. For instance,
throughout its opinion in Davis, this Court referred to the defendant being “on
first offender probation” when referring to the period in which he was serving
a first-offender sentence. See 273 Ga. at 14-15. This Court has used that
formulation at least as far back as 1974, when it contrasted “the first offender
probation” with “probation in other cases.” Wiley, 233 Ga. at 317. Similarly,
the Court of Appeals noted in Collins that “‘under the first offender statute,
until an adjudication of guilt is entered, there is no conviction. The case has,
in effect, been suspended during the period of probation until eventually the
probation is either revoked or it is discharged; unless it is revoked, there is no
conviction.’” (Emphasis omitted.) 338 Ga. App. at 889 (1) (quoting Cook v. State,
338 Ga. App. 489, 497 (4) (790 SE2d 283) (2016) and citing Davis). Some of this
confusion may also come from the Code itself, which, in at least one instance
refers to a person serving a first-offender sentence as being “on probation as a
felony first offender.” OCGA § 16-11-131 (b). See also Chavez v. State, 307 Ga.
804, 808 (1) (b) (837 SE2d 766) (2020) (referring to a first-offender sentence as
“felony first-offender probation” when discussing prohibition on possessing a
firearm under OCGA § 16-11-131 (b) during the period of a first-offender
sentence).
We take this opportunity to clarify that when referring to “probation” in
regard to a first offender, we mean to use that term in the way the First
Offender Act does when it provides that an offender may serve a term of
probation ordered by the court as part of a first-offender sentence under OCGA
§ 42-8-60 (a). Such probation may be revoked by the court, but, as noted above,
that action is not synonymous with revocation of first-offender status.
Although a first offender’s status is clearly “probationary” in nature, due to his
ability to be exonerated of the offense at the conclusion of the first-offender
sentence, we recognize that the use of that descriptor by the General Assembly
and the appellate courts may have created confusion about the nature of the
probation that may be ordered and revoked by the sentencing court under the
First Offender Act and the effect of any such revocation on the defendant’s
first-offender status.

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was revoked by the entry of an adjudication of guilt and sentence by

the court under OCGA § 42-8-60 (d) as to the 1990 case. In the

absence of such action by the court, at the completion of his first-

offender sentence as to the 1990 case, Benton was exonerated of

guilt and discharged as a matter of law as to that case. See OCGA §

42-8-60 (e). Thus, in regard to the case now before us, the 1990 case

could not count toward showing that Benton had previously been

convicted of “three felonies” under OCGA § 17-10-7 (c). As a result,

the trial court erred in sentencing Benton as a recidivist under

OCGA § 17-10-7 (c) on the aggravated assault charge on which he

was found guilty in this case. 8

In light of the foregoing, Benton’s sentence on the aggravated

assault charge must be vacated, as he was not eligible for sentencing

as a recidivist under OCGA § 17-10-7 (c). We therefore reverse the

8 Neither Benton nor the State have made any showing that Benton’s
September 1998 or October 2012 convictions have been vacated, reversed,
pardoned, or otherwise set aside, nor has either party argued that the court
erred by sentencing Benton as a recidivist under OCGA § 17-10-7 (a) in this
case. For that reason, nothing in this opinion should be read to suggest that
Benton cannot be sentenced as a recidivist under that Code section.
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judgment of the Court of Appeals and remand this case to the Court

of Appeals with direction that it vacate the sentence imposed by the

trial court and remand this case to that court for resentencing in

accordance with this opinion.

Judgment reversed and case remanded with direction. All the
Justices concur.

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