Felonies, Misdemeanors, And Infractions in Georgia

A crime is a violation of a law or statute of a government. Based on the nature and severity of the offense, crimes in Georgia are generally divided into three broad types:

• Felonies
• Misdemeanors
• Infractions.

Felonies are the most severe legal offenses, followed by misdemeanors, which are lesser offenses. Each type has the most severe, severe, and less severe punishment, as provided by the Georgia Criminal Code. Consequently, Georgia crimes are tried based on the categories above.
Beyond the types of criminal records, Georgia’s statutes of limitations set deadlines for the state to file charges in the Peach State.

What is a Felony in Georgia?

The Georgia legislature classifies felonies as the most serious crimes in the state. These crimes are generally punishable by a minimum of one year's imprisonment. In addition, most of the crimes under the “serious violent felony” category have penalties ranging from 25 years imprisonment to the death penalty. In addition to prison, punishment may include probation, fines not less than $1,000, or other mandatory sanctions imposed at the judge's discretion (Georgia Code § 17–10–6.1).

Categories of Felonies in Georgia

Unlike many states, Georgia does not categorize crimes by class or degree. Instead, specific punishments are assigned on a crime-by-crime basis to allow for flexibility in sentencing. Therefore, Georgia courts determine sentences for felonies based on the nature of the crime and its severity levels. Other unique factors that may be used to determine sentences include:

• Previous records
• Mitigating circumstances
• Psychology
• Age
• Consequences of the act.

These factors may increase or reduce the sentence for a felony. For instance, instead of prison, someone with a proven mental condition may be sent to a mental facility. Similarly, first-time juvenile offenders may have reduced or split sentences.

What are Some Examples of Felonies in Georgia?

The felony class encompasses the most serious crimes under the Georgia Criminal Code. This includes crimes such as:

• Aggravated sexual battery
• Rape
• Aggravated child molestation
• Armed robbery
• Murder or felony murder
• Kidnapping.

Other examples of felonies are:

• Possession of marijuana for use (more than 1 ounce)
• Possession of weapons of mass destruction
• Invasion of privacy
• Aggravated assault/ battery
• Home invasion/ robbery
• Arson (first, second, and third degree).

The Georgia Wobbler Law (Georgia Code § 17-10-5) allows some crimes to “wobble”. Certain crimes may be categorized as wobblers in Georgia (felonies or misdemeanors based on the circumstances surrounding the case). With the Wobbler law, a judge may impose a misdemeanor sentence for a felony (a ten-year prison sentence or less). It may also result in increased sentences for misdemeanors. Crimes that may be treated as wobblers in Georgia include:

• Grand theft
• Obscenity
• Stalking
• Identity fraud
• Trespass
• Vandalism
• Forgery
• Fraudulent practices.

Can I Get a Felony Removed From a Court Record in Georgia?

Yes, felony records can be sealed from public viewing or expunged depending on the crime and other circumstances. Records of arrests for felonies that did not result in convictions are generally eligible for restriction. Exemptions to this include:

• If the individual pleads guilty to the charge or another charge in the same case.
• If the individual was involved in a pattern of criminal activity in another state or jurisdiction.
• If the prosecution had suppressed important evidence against the individual.
• If the charge had been dismissed based on some form of immunity.

Conversely, felons cannot expunge their records, regardless of the time passed or whether a pardon was granted. The law allows for record restriction only if they meet specific criteria, such as being youthful offenders (under 21) convicted of less-serious felonies or first-time offenders of certain crimes like drug possession (Georgia Code § 16–13–2). These individuals must fulfill other conditions and complete their sentences to qualify (Georgia Code § 35–3–37).

Eligible individuals may submit a petition to the court where they were charged or convicted, and hearings should be held within 90 days from the filing date. Once a court order for expungement is given, the court clerk and law enforcement agencies typically restrict the record information for 60 days after the order.

Is Expungement the Same as Sealing Court Records in Georgia?

Yes, in Georgia, expungement, record restriction, and sealing refer to the same action. Once the state restricts a record, it protects that information from public viewing to a certain extent. While private individuals and businesses cannot access restricted records through criminal records searches, these documents are accessible to law enforcement agents and prosecutors (Georgia Code § 35–3–34).
However, these restricted or expunged records may still be considered public and can be accessed by private persons with the right credentials (for example, the fingerprints and signed approvals of the formerly convicted individual).

Note: People with expunged records in Georgia are permitted by law to deny having a criminal record.

How Long Does a Felony Stay on Your Record in Georgia?

In Georgia, a felony conviction may remain permanently on a record unless legally restricted, pardoned, or expunged under rare circumstances. Records of cases that were never referred for prosecution are automatically restricted after a specified period. For instance, youthful felonies take four years while violent and sex-related felonies take seven years (GA. Code.§ 35–3–37).
Apart from these scenarios, it is not safe to assume that a felony will be automatically removed from a record. Individuals who have been convicted of committing a felony may have the offense on their records forever unless they petition the court for the expungement of the record and the court grants the request.

What is a Misdemeanor in Georgia?

Georgia considers misdemeanors to be criminal acts that are less serious than felonies. These crimes have less severe punishments compared to felonies. However, they are more serious than infractions with more severe penalties in this case. According to the Georgia Criminal Code, depending on the offense, the penalties for misdemeanors can range from fines to probation to jail terms of not more than one year. The penalties for a misdemeanor conviction may differ based on the nature of the crime, previous records, severity of the crime, and other mitigating or aggravating circumstances surrounding the crime.

Categories of Misdemeanors in Georgia

Misdemeanors in Georgia are broadly categorized into two categories, namely:

• Misdemeanors - These are the typical or standard misdemeanors that cause minor damage. Jail terms do not exceed 12 months, and fines do not exceed $1,000. License suspension may even be done (Georgia Code § 17–10–3). The judge may split sentences and decide how and where the penalties may be served.
• Misdemeanors of a high and aggravated nature - While these crimes also have a potential one-year sentence, misdemeanors of a high and aggravated nature tend to be more violent or have more consequences in terms of physical or financial damages. Repeat misdemeanors are also classified under this category. Hence, the fines are usually higher but may not exceed $5,000 (Georgia Code § 17–10–4). The judge may also decide to split, modify, suspend, amend, alter, or probate sentences as long as the penalties do not exceed the maximum sentence of 12 months.

What are Some Examples of Misdemeanors in Georgia?

Examples of misdemeanors in Georgia include:

• Certain DUI offenses
• Domestic violence
• Falsifying documents
• Reckless conduct
• Shoplifting
• Simple assault/battery
• Trespassing
• Unlawful hunting of game
• Vandalism.

Additionally, the Georgia Wobbler Law can classify certain misdemeanors as felonies, and it may increase the penalties. For instance, the state treats certain violent misdemeanors as felonies. Likewise, the law imposes a felony sentence on repeated offenders of certain misdemeanors after they commit the third offense.

Can I Get a Misdemeanor Removed from a Record in Georgia?

Yes, a misdemeanor arrest or conviction record can be removed in Georgia. In most cases, misdemeanor charges that were dismissed or found not guilty may be automatically removed from the record after two years of non-referral for prosecution. The same applies to cases suspended (dead dockets) for more than a year.

Eligibility to Restrict Records in Georgia

Individuals arrested but not charged or convicted of a misdemeanor can apply for a record restriction from the Georgia Crime Information Center (GCIC). Additionally, they may petition the courts where they were charged or convicted for expungement if they committed misdemeanors before the age of 21, provided they meet the following conditions:

• They did not commit serious traffic offenses, theft, or crimes related to violence or sex.
• They were charged with a felony but ultimately convicted of a non-related misdemeanor.
• They completed the sentences for their offenses and any mandatory counseling or rehabilitation program.
• They did not commit any crimes during the five-year waiting period.

The law excludes others who do not fall into these categories from eligibility for record restriction.

The Record Restriction Process in Georgia

The Georgia record restriction process depends on the arrest date and the case resolution. Arrests before July 2013 may involve submitting a form filled out and signed by the former convict, prosecutors, and the arresting agency. This form may then be forwarded to the GCIC, and some fees may be paid. After that, the request is processed and granted if deemed worthy. However, restriction of arrest records after July 2013 may be done by the prosecutor at sentencing. Interested and eligible persons can also file a petition for expunction in the court where they were charged or convicted after five years of completing the sentence.

Can a DUI be Expunged in Georgia?

Yes, if the court dismisses a DUI charge or finds the defendant not guilty, the person may expunge the offense and qualify for record restriction in Georgia. The law, however, prevents individuals convicted of a DUI from restricting their records.
Furthermore, a 10-year lookback period governs DUIs, and any violations occurring during this time may warrant more severe punishments. For example, a first DUI offense may result in point loss, but a second offense within the lookback period brings heavy fines or imprisonment.
The public often confuses this time with a waiting period for record restriction, but the lookback period does not establish a timeframe after which they can file for record restriction.

What Constitutes an Infraction in Georgia?

An infraction constitutes a petty offense that is less serious and carries less severe penalties than misdemeanors and felonies. It is primarily a non-criminal violation of a law, statute, code, or regulation that a government body created. Penalties for infractions in Georgia do not require prison time; instead, the public body usually issues citations and fines, with few other warnings or sanctions. Most people usually pay the fine, but they can dispute infraction charges in court, either in person or through a legal representative.

Infractions are not criminal offenses on their own and are too common or minor to negatively influence an individual's professional or personal life. However, in Georgia, some infractions can lead to misdemeanors, especially traffic offenses. In this case, the infraction may be recorded and linked to a more serious crime.

What are Some Examples of Infractions in Georgia?

Unlike many states, Georgia classifies most traffic violations as misdemeanors. The same goes for some minor offenses (for instance, failing to leash a pet). However, some common infractions in the state include:

• Traffic infractions, such as:
  • Broken headlights
  • Illegal U-turn
  • Wrongful parking
  • Running a red light
• Littering
• Civil infractions like noise-making or disturbance of the peace
• Violating seatbelt laws
• Attempting to drink alcohol while under the age of 21
• Underage clubbing
• Campsite or park violations.

Can Infractions be Expunged from a Georgia Criminal Court Record?

Infractions are non-criminal offenses; therefore, the court in Georgia does not record them in a criminal file unless they lead to another misdemeanor. For instance, if police discover drugs when they pull a driver over for a broken headlight.

What is Deferred Adjudication in Georgia?

Deferred adjudication is not a formal term in Georgia; the closest equivalent is the Georgia First Offender Act (a judge-supervised sentencing option under § 42-8-60 of the Official Code of Georgia Annotated) and the pretrial diversion/deferred-prosecution programs run by prosecutors under § 15-18-80 of the Georgia Code. Under the First Offender Act, the court withholds adjudication and places the offender on probation. Similarly, a prosecutor may agree not to pursue prosecution if an eligible offender participates in a pre-trial diversion program. Successful completion of any of these programs can result in “no conviction” on the offender's record.

In Georgia, not all crimes are eligible for the First Offender Act or the pre-trial diversion program. Additionally, each district/circuit’s State Attorney or Solicitor General may have different diversion programs, eligibility criteria, and conditions. For instance, only individuals without previous felony convictions may qualify for the First Offender Act.
The following statutory eligibility rules apply to individuals seeking relief under Georgia's First Offender Act and deferred-prosecution programs:

• No previous felony conviction
• The crime must be non-violent, non-sexual, and not a DUI violation. Violent crimes are not eligible. Eligibility applies to misdemeanors and low-level non-violent third-degree felonies
• The offender must enter a “not guilty” plea
• Diversion programs and the First Offender Act require the prosecutor’s or the court's consent
• Participants must comply with the terms and conditions, including:
  • probation terms
  • Counseling, classes
  • Restitution
  • Community service
  • Drug testing
  • Payment of fees
  • No new arrests
• The defendant must pose a threat to the public
• Participants must abide by the program-specific rules.

Types of Crimes Eligible for Deferred Adjudication in Georgia

Unlike some states, deferred adjudication is not a formal term in Georgia. However, it is comparable to Georgia's First Offender Act and pre-trial diversion programs. According to the Georgia Statutes, not all crimes are eligible for the First Offender Act or pretrial diversion. Offenses that qualify for Georgia's First Offender Act include the following:

• Property Crimes
  • Theft by taking
  • Shoplifting
  • Forgery
  • Credit card fraud or identity theft
  • Non-violent burglary
• Drug Crimes
  • Possession of a controlled substance
  • Possession with intent to distribute
  • Possession of marijuana
• Fraud & Financial Crimes
  • Deposit account fraud
  • Insurance fraud
  • Theft by deception
• Other Non-violent Offenses
  • Obstruction of justice
  • Bribery
  • Commercial gambling
  • Certain computer crimes.