dissenting.
I respectfully dissent to Division 1 of the majority opinion. In their first enumeration appellants assign error to the trial court’s denial of their motion in limine which sought to exclude from evidence the criminal record of appellant Steve R. Hightower. As noted by the majority, Hightower pled guilty to third-degree arson; he received a period of probation and a fine as a first offender pursuant to what is commonly known as the First Offender Act (hereinafter, the Act), OCGA § 42-8-60 et seq. Appellants argue that first offender status, in which there has been no adjudication of guilt, cannot be utilized to impeach the trustworthiness of a witness in a civil proceeding.
The First Offender Act provides that “[u]pon a verdict or plea of *116guilty 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. . . .” OCGA § 42-8-60 (a) (1). “Upon fulfillment of the terms of probation, upon release by the court prior to the termination of the period thereof, or upon release from confinement, the defendant shall be discharged without court adjudication of guilt. The discharge shall completely exonerate the defendant of any criminal purpose and shall not affect any of his civil rights or liberties; and the defendant shall not be considered to have a criminal conviction.” OCGA § 42-8-62. Access to a first offender record is strictly limited to those officials in a position to use it “in any subsequent prosecution of the defendant for any other offense. . . .” OCGA § 42-8-65 (a); 1981 Op. Att’y Gen. U81-32.
Generally, a witness is subject to impeachment by proof of a conviction of a felony or a crime involving moral turpitude. Henderson v. State, 146 Ga. App. 114 (3) (245 SE2d 437) (1978). However, “[i]t is obvious that the General Assembly intended the first offender probation to have a different effect than probation in other cases. Any probationary sentence entered under this Act is preliminary only, and, if completed without violation, permits the offender complete rehabilitation without the stigma of a felony conviction.” State v. Wiley, 233 Ga. 316, 317 (210 SE2d 790) (1974). Notwithstanding the broad protection afforded a first offender under the Act, the Supreme Court has carved out a limited exception thereto. In Favors v. State, 234 Ga. 80 (3) (214 SE2d 645) (1975), the court held that a criminal defendant may utilize the first offender record of a State’s witness for the purpose of impeachment. “Considering the merits of this question, where the testimony of a witness is sought to be impeached by conviction of a crime, the assumption is that such person may be untrustworthy as a witness and that the jury should be informed of this possible lack of trustworthiness in reaching their verdict ... In balancing the rights of a first offender to be protected against having the stigma of a criminal record as opposed to the rights of a defendant in a criminal case to impeach the testimony of the witnesses against him, the latter prevails.” Id. at 87; Gilstrap v. State, 250 Ga. 814 (2) (301 SE2d 277) (1983). See also State of Ga. v. C. S. B., 250 Ga. 261, 263 n. 2 (297 SE2d 260) (1982). The majority, citing Moon v. State, 154 Ga. App. 312 (1) (268 SE2d 366) (1980), argues that this court has further eroded a first offender’s rights under the Act by extending the rule in Favors to allow the State in a criminal case to introduce evidence of a defense witness’ first offender status for the purpose of impeachment. However, the conclusory language of the opinion in Moon affords no basis for so holding. In the absence of such a basis or any explanation *117for the holding, I find the opinion in Moon to be entirely unpersuasive as authority for the proposition that the State may impeach a defense witness by use of the witness’ first offender status. See also Miller v. State, 162 Ga. App. 730, 733 (292 SE2d 102) (1982), and Ware v. State, 152 Ga. App. 199, 200 (262 SE2d 536) (1979), wherein this court’s unnecessarily overbroad language implying an unrestricted use of first offender status for impeachment is mere obiter dicta. There is, thus, no substantial authority for extension of the rule in Favors beyond the limited circumstances of that case, even in the criminal arena. In light of the following discussion, I would overrule the holding in Moon, and expressly disapprove the cited obiter in Miller and Ware.
Clearly, the Supreme Court in Favors found the circumstance of a defendant in a criminal case, who faces the possible loss of his liberty, to be more compelling than the circumstance of a witness/first offender against him, who faces only the stigma of a criminal record. In a civil case such as the case at bar, there is no comparable justification, in my view, for further eroding the rights of a first offender under the Act. Under Georgia law as it now stands, a record of conviction may be used to impeach a witness no matter how much time has elapsed since the conviction. Giles v. Jones, 169 Ga. App. 882 (315 SE2d 440) (1984). This has been the rule in this state for over 100 years. See Georgia R. v. Homer, 73 Ga. 251 (5) (1885). Since its enactment by the General Assembly in 1968 the First Offender Act has expressly provided that “[u]pon fulfillment of the terms of probation . . . the defendant shall not be considered to have a criminal conviction.” (Emphasis supplied.) OCGA § 42-8-62; see Ga. L. 1968, pp. 324, 325. “When the law is clear and explicit and its provisions are susceptible of but one interpretation, its consequences, if evil, can only be avoided by a change of the law itself, to be effected by legislative and not by judicial action. [Cit.] It is an elementary rule of construction that when a statute is clear and unambiguous, it will be held to mean what has been clearly expressed.” Barnes v. Carter, 120 Ga. 895, 898 (48 SE 387) (1904); Rayle Elec. Membership Corp. v. Cook, 195 Ga. 734 (2) (25 SE2d 574) (1943). “And it is well settled in this jurisdiction that all statutes are presumed to be enacted by the legislature with full knowledge of the existing condition of the law and with reference to it. . . .” Spence v. Rowell, 213 Ga. 145, 150 (97 SE2d 350) (1957). Applying the e rules to the First Offender Act, it is unmistakably clear that the General Assembly intended to exclude the use of a first offender record for the purpose of impeachment, for there generally can be no impeachment without a record of conviction. See Durrett v. State, 135 Ga. App. 749 (3) (219 SE2d 9) (1975); but see Favors v. State, supra.
*118Decided May 31, 1985 Rehearing denied June 12, 1985 Lewis N. Jones, for appellants. Byron Attridge, Chilton D. Varner, J. Comer Yates, Edward D. Buckley III, Daniel A. Angelo, for appellees.purpose of impeachment, particularly in civil cases, would be directly contrary to the express mandate of the Act and would impose by judicial fiat a limitation, in addition to the one expressly provided by the General Assembly, on the right of a first offender to be free from the stigma of a criminal record. I am persuaded that the General Assembly intended the Act to ameliorate the harsh consequences of a criminal conviction for those who have not previously committed a crime. That is, the Act provides a first offender with a “second chance” in life by providing him the opportunity to rehabilitate himself and thus earn “forgiveness,” if you will, for his crime. It follows that an individual in the process of serving a period of probation under the Act, such as appellant Steve Hightower in this case, should be treated in the same manner as an individual who has satisfactorily fulfilled the terms of his probation. See, e.g., 1981 Op. Att’y Gen. U81-12. Therefore, I believe the trial court erred in denying appellants’ motion in limine and in admitting Hightower’s first offender record into evidence for the purpose of impeaching his credibility. Since much of appellants’ case rested upon the testimony of appellant Steve High-tower, I do not view the error as harmless. See Gilstrap v. State, supra. Accordingly, the judgment of the trial court should be reversed and the case remanded for a new trial.
I am authorized to state that Judge Carley and Judge Benham join in this dissent.