dissenting.
Jones pled guilty to the charge of commercial gambling, in that he did “receive and record a bet and offers of bets and did sell chances upon the partial and final results of, and upon the margin of victory in, sports games.”
When a person’s plea of guilty results in first offender treatment, the first offender record is not admissible to show such person has been convicted of a felony or crime of moral turpitude for impeachment purposes, because OCGA § 42-8-62 provides that upon fulfillment of the terms of probation under the first offender statute, the defendant shall be discharged without adjudication of guilt and “shall not be considered to have a criminal conviction.” (Punctuation omitted; emphasis supplied.) Witcher v. Pender, 260 Ga. 248 (392 SE2d 6) (1990). Compare Favors v. State, 234 Ga. 80, 87 (3) (214 SE2d 645) (1975).
However, where a witness in a civil case testifies concerning the incident resulting in a first offender plea, the plea is admissible to impeach the witness by disproving or contradicting the facts to which he testifies. Hightower v. Gen. Motors Corp., 255 Ga. 349 (338 SE2d 426) (1986). In a criminal trial, the State may introduce evidence of a similar transaction for which the defendant has been subsequently discharged as a first offender, without introducing evidence of adjudication. Tilley v. State, 197 Ga. App. 97, 98 (2) (397 SE2d 506) (1990). See generally Brewer v. Rogers, 211 Ga. App. 343 (439 SE2d 77) (1993).
In this case, the trial court allowed the State’s evidence, that Jones pled guilty to the indictment charging him with commercial gambling, as an admission that he had committed the offense, without admitting evidence of his first offender treatment. This use of only the indictment and signed plea form, in the condemnation action directly related to them and based on the same facts, was not inconsistent with the first offender statute, as interpreted in the previously cited cases.
The State did not seek to admit evidence of the plea for the pur*686pose of showing the defendant’s conviction of a crime, which is what Witcher prohibits. There was no evidence of adjudication, which is what Tilley prohibits. There was only evidence, as shown by the plea, that defendant admitted engaging in the conduct. This is not a “conviction,” which is the judgment on a verdict or guilty plea. OCGA § 16-1-3 (4); Black’s Law Dictionary, p. 403 (4th ed. rev., 1968).
Decided March 18, 1994 Reconsideration denied March 31, 1994 J. Russell Phillips, Jr., for appellant. Joseph H. Briley, District Attorney, Fredric D. Bright, Assistant District Attorney, for appellee.Admission of the evidence here is consistent with Witcher and Tilley as well as Hightower. Certainly the statute protects defendant against the stigma of a criminal record and the loss of civil rights or liberties. It does not protect him against the loss of property used in, derived from, or realized through his commission of the crime. Use of the defendant’s plea of guilty in the first offender proceeding did not create a Hobson’s choice. Instead, it obviated the necessity for the State to submit all the witnesses and physical evidence to show that he had committed the prohibited act, which he had already acknowledged.
Neither the fact that he had not yet had an opportunity to complete probation and be discharged without an adjudication of guilt, nor the use of the guilty plea for a purpose other than certain types of impeachment, precluded its admission in the forfeiture, which merely proceeded upon the same underlying circumstances as did the plea. No stigma was created which would not have been created by the introduction of the underlying evidence. Nor was the exoneration purpose of the First Offender Act jeopardized, because first offender treatment does not insulate a defendant’s property from forfeiture under OCGA § 16-12-32.
I am authorized to state that Judge Andrews joins in this dissent.