CourtListener 10680328

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In the Supreme Court of Georgia

Decided: May 29, 2024

S23G1037. HOWARD v. THE STATE.

PETERSON, Presiding Justice.

Isaac Taqai Howard filed a direct appeal seeking review of an

order revoking his first-offender status. The Court of Appeals

applied its own longstanding precedent to dismiss Howard’s appeal

for lack of jurisdiction because he failed to file an application for

discretionary appeal. We granted certiorari to determine whether

Howard had the right to a direct appeal under OCGA § 5-6-34 (a) or

was instead required to file a discretionary application under OCGA

§ 5-6-35 (a). We conclude that the entry of an adjudication of guilt

and revocation of a defendant’s first-offender status is directly

appealable. Therefore, we reverse the Court of Appeals’s judgment.

On March 26, 2021, Howard entered two negotiated pleas.

Howard and the State agreed to consolidate these cases for purposes
of trial and tender them under Georgia’s First Offender Act. The

trial court agreed and sentenced Howard as a first offender to two

concurrent fifteen-year sentences, with the first eighteen months in

confinement and the balance served on probation. Howard received

credit for time served, and he was released from confinement on the

date of the plea hearing.

In November of 2022, the State filed two “Petition[s] for the

Adjudication of Guilt and Imposition of Sentence” which alleged that

Howard violated the conditions of his probation. After a “Probation

Revocation Hearing” on December 14, 2022, the trial court entered

an adjudication of guilt on both petitions and resentenced Howard

on both petitions as a felon to fifteen years, with the first five years

in confinement and the balance served on probation. Howard filed a

notice of appeal as to both cases, which the Court of Appeals

dismissed in an unpublished order on the ground that Howard’s

appeal was an appeal from an “order[] revoking probation” under

OCGA § 5-6-35 (a) (5) such that Howard’s failure to file an

application for discretionary appeal deprived it of jurisdiction.

2
In doing so, the Court of Appeals faithfully applied its decision

from nearly 40 years ago in Dean v. State, 177 Ga. App. 123 (338

SE2d 711) (1985). The Dean court held over a dissent that the

revocation of a defendant’s first-offender probation was controlled

by the discretionary appeal procedure in OCGA § 5-6-35. The court

offered three reasons for this conclusion: (1) OCGA § 5-6-35 (a)

required a discretionary application for appeals from orders

revoking probation, “making no distinction between ‘first-offender’

probation . . . and probation otherwise provided for in criminal

cases”; (2) the “purpose of the discretionary appeal statute is in part

to reduce the tremendous case load of the state’s appellate courts”;

and (3) the First Offender Act provided an avenue of direct appeal

“upon the imposition of first-offender status[.]” Dean, 177 Ga. App.

at 124 (1) (citing OCGA § 5-6-35 (a) (5)). Judge Beasley dissented in

part and would have held that the entry of an adjudication of guilt

and resentencing of a first offender upon the revocation of first-

offender status is directly appealable, reasoning that “an appeal

from a termination of probation under the First Offender Act . . . . is

3
from more than a mere ‘order revoking probation’” and is “actually

an appeal also from the judgment of guilt itself as well as from the

new sentence.” Id. at 127-128 (Beasley, J., dissenting in part).

Howard then filed a petition for a writ of certiorari, which we

granted. Howard argues on appeal that the trial court’s revocation

of his first-offender status, entry of an adjudication of guilt, and

resentencing constitute a final judgment that is directly appealable.

We agree with Howard and Judge Beasley.

1. Different procedures govern the requirements for direct
appeals and discretionary appeals.

“Two code sections primarily govern the method for pursuing

appeals to this Court and the Court of Appeals” — OCGA § 5-6-34

and OCGA § 5-6-35. Grogan v. City of Dawsonville, 305 Ga. 79, 82

(2) (823 SE2d 763) (2019). Under OCGA § 5-6-34, subsection (a)

identifies trial court decisions that may be appealed immediately,

and subsection (b) provides an interlocutory appeal procedure by

which a party can obtain permission from the trial court to seek

appellate review of a decision that would otherwise not be

4
immediately reviewable. See OCGA § 5-6-34 (a), (b). If a trial court’s

decision is immediately appealable under OCGA § 5-6-34 (a), a

would-be appellant must then determine whether he or she is

entitled to a direct appeal by notice of appeal or must file an

application for discretionary review. 1

OCGA § 5-6-35 “governs the process by which a party must file

an application for discretionary review for certain orders that are

immediately appealable.” Grogan, 305 Ga. at 82 (2). If the

underlying subject matter of the appeal is one of the categories of

cases listed in OCGA § 5-6-35 (a), the appeal “shall be by application

in the nature of a petition enumerating the errors to be urged on

appeal and stating why the appellate court has jurisdiction[,]”

OCGA § 5-6-35 (b), “even when the party is appealing a judgment or

order that is procedurally subject to [immediate] appeal under

1 We have often used the phrase “direct appeal” confusingly to “refer to

two different concepts: (1) an immediate appeal [under OCGA § 5-6-34 (a)] for
which permission is not required to be obtained through the interlocutory
review process; and (2) an appeal that is entitled to come by a notice of appeal,
not an application for discretionary review.” Grogan, 305 Ga. at 82 (2) n.4. But
“[t]hese are not the same.” Id. We use “direct appeal” here to mean only the
latter.
5
OCGA § 5-6-34 (a).” Grogan, 305 Ga. at 82 (2) (citation and

punctuation omitted).

Defendants in criminal cases may take immediate appeals

from all final judgments, which OCGA § 5-6-34 (a) (1) defines as

“where the case is no longer pending in the court below,” and may

do so by simply filing a notice of appeal (i.e., a direct appeal) unless

the case is one of the specified categories of cases in OCGA § 5-6-35

(a) that must come by discretionary application. See Seals v. State,

311 Ga. 739, 742-743 (2) (a) (860 SE2d 419) (2021) (a case is “no

longer pending” when the trial court has resolved every count and

left no issue remaining to be resolved), disapproved in part on other

grounds by Gonzales v. State, 315 Ga. 661, 665 (1) (b) n.7 (884 SE2d

339) (2023). For the categories of cases listed in OCGA § 5-6-35 (a),

a defendant is not entitled to a direct appeal but instead must file a

discretionary application to seek appellate review. See OCGA § 5-6-

35 (b)-(f) (establishing discretionary application procedure). In

particular, OCGA § 5-6-35 requires a discretionary application for

“[a]ppeals from orders revoking probation[.]” OCGA § 5-6-35 (a) (5).

6
Whether an appeal from an adjudication of guilt and resentence

upon revocation of first-offender status is a final judgment, and

whether it is covered by OCGA § 5-6-35 (a) (5), require careful

consideration of the First Offender Act.

2. The trial court’s entry of an adjudication of guilt and
resentencing upon the revocation of a first-offender status constitutes
a final judgment that is not covered by OCGA § 5-6-35 (a) (5).

Under Georgia’s First Offender Act, “a first-time felony

offender who enters a guilty plea may be sentenced to probation or

confinement ‘before an adjudication of guilt’ and ‘without entering a

judgment of guilt.’” Manner v. State, 302 Ga. 877, 888 (III) (808 SE2d

681) (2017) (citing OCGA § 42-8-60 (a)2). The First Offender Act is a

unique act by which the legislature extends a form of grace to

individuals who commit certain types of crimes. The Act “protect[s]

the first offender from the stigma of having a criminal record until

2 OCGA § 42-8-60 (a) states:

When 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: (1) [p]lace the defendant on probation; or
(2) [s]entence the defendant to a term of confinement.
7
an adjudication of guilt has been entered with regard to the crime

for which the defendant was given first offender treatment.” Davis

v. State, 269 Ga. 276, 277 (2) (496 SE2d 699) (1998). Because of its

uniqueness, Georgia courts have sometimes used language more

consistent with typical criminal processes in describing the First

Offender Act and the status of first-offenders, causing a fair amount

of confusion. See Benton v. State, 314 Ga. 498, 503 (2) n.7 (877 SE2d

603) (2022) (noting that some of the confusion stems from the Act’s

language itself).

a. The entry of an adjudication of guilt and resentencing upon
the revocation of first-offender status constitutes a final judgment.

While plainly amounting to something like a conviction in some

senses (most notably, the offender may be sentenced to prison), the

imposition of a first-offender sentence “does not immediately

constitute a ‘conviction’ as that term is defined in Georgia’s Criminal

Code.” 3 Benton, 314 Ga. at 501 (2). Instead, the imposition of a first-

3 Georgia’s Criminal Code defines “conviction” as “a final judgment of

conviction entered upon a verdict or finding of guilty of a crime or upon a plea
of guilty.” OCGA § 16-1-3 (4).
8
offender sentence under OCGA § 42-8-60 (a) “defer[s] further

proceedings[,]” and the charge remains pending for the duration of

the first-offender sentence. See Smith v. State, 276 Ga. 263, 265 (2)

(577 SE2d 548) (2003) (when a defendant is on first-offender

probation, “there has not been an adjudication of guilt and the

matter remains pending”).

Any probationary sentence entered under [the First
Offender] Act is preliminary only, and, if completed
without violation, permits the offender complete
rehabilitation without the stigma of a felony conviction.
If, however, such offender does not take advantage of such
opportunity for rehabilitation, his [proceeding] which has,
in effect, been suspended is continued and an adjudication
of guilt is made and a sentence entered.

State v. Wiley, 233 Ga. 316, 317 (210 SE2d 790) (1974). Because the

charge remains pending, no final judgment has occurred, and an

immediate appeal would not be permitted under OCGA § 5-6-34

without a certificate of immediate review. But OCGA § 42-8-64

provides an avenue of immediate appeal to a defendant sentenced

as a first offender. 4

4 OCGA § 42-8-64 states that “[a] defendant sentenced pursuant to this

9
“Upon satisfactory completion of a sentence imposed pursuant

to [OCGA § 42-8-60 (a)], the defendant is discharged and exonerated

of guilt.” Manner, 302 Ga. at 888 (III) (emphasis added; citing OCGA

§ 42-8-60 (e)). But if the defendant violates the terms of first-offender

probation or is convicted of another crime during the pendency of

that sentence, the trial court has discretion to revoke the defendant’s

first-offender status and “may enter an adjudication of guilt and

proceed to sentence the defendant as otherwise provided by law[.]”

OCGA § 42-8-60 (d).5

At that point, if the trial court chooses to enter an adjudication

of guilt and to resentence the defendant on the counts forming the

basis of the initial first-offender sentence, this revokes the

defendant’s first-offender status and resolves every count such that

article shall have the right to appeal in the same manner and with the same
scope and same effect as if a judgment of conviction had been entered and
appealed from.”
5 The violation of a first offender’s conditions of probation does not

automatically revoke the first-offender status. “Instead, [the violation] is a
condition which, if met, gives the court discretion to enter an adjudication of
guilt.” Benton, 314 Ga. at 502 (2). “If a court exercises its discretion not to enter
that 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.” Id.
(emphasis in original).
10
“the case is no longer pending in the court below[.]” OCGA § 5-6-34

(a). See OCGA § 42-8-60 (d); Benton, 314 Ga. at 501-502 (2).

Therefore, the entry of an adjudication of guilt and sentence

constitutes a final judgment and triggers the defendant’s right to an

immediate appeal under OCGA § 5-6-34 (a) (1). See Allen v. State,

315 Ga. 524, 525 n.1 (883 SE2d 746) (2023) (case “became subject to

direct appeal” when the trial court entered a conviction and

sentence, resolving all counts of the indictment); Benton, 314 Ga. at

502 (2) (referring to the trial court’s entry of an adjudication of guilt

and sentence for violation of first-offender probation as a

“judgment”); Seals, 311 Ga. at 742 (2) (a) (case is final and

appealable when the trial court has entered a written judgment that

imposes a sentence on each count).

b. An appeal in this context is not an appeal from an order
revoking probation and thus does not require a discretionary
application.

In reliance on the Court of Appeals’s decision in Dean and its

progeny, the State nonetheless argues that Howard was required to

file a discretionary application because OCGA § 5-6-35 (a) (5)

11
requires a discretionary application for “[a]ppeals from orders

revoking probation[.]” The Court of Appeals has interpreted that

provision as “making no distinction between ‘first-offender’

probation (see OCGA § 42-8-60 et seq.) and probation otherwise

provided for in criminal cases (see OCGA § 42-8-34).” Dean, 177 Ga.

App. at 124 (1). Put another way, the State argues that an order

revoking probation and an adjudication of guilt after the violation of

a first-offender sentence are essentially the same and yield the same

result, so they should be treated the same for purposes of appeal.

But the State’s argument and the Court of Appeals precedent on

which it relies are unsupported by the text of OCGA § 5-6-34, OCGA

§ 5-6-35 (a) (5), and OCGA § 42-8-60, and they ignore key differences

between an adjudication of guilt and an order revoking probation.6

OCGA § 5-6-34 (a) (1) makes clear that “[a]ll final judgments”

6 Notwithstanding the fact that Dean was decided in 1985, stare decisis

does not apply to our review of Court of Appeals precedent. See Olevik v. State,
302 Ga. 228, 244 (2) (c) (iv) (806 SE2d 505) (2017) (“Under the doctrine of stare
decisis, courts generally stand by their prior decisions[.]” (emphasis added));
Rollf v. Carter, 298 Ga. 557, 559 (784 SE2d 341) (2016) (decisions by the Court
of Appeals are not binding on this Court). The question we decide today is a
question of first impression for this Court.
12
are entitled to a direct appeal unless the subject matter is one of the

categories of cases listed in OCGA § 5-6-35. The text of OCGA § 5-6-

35 (a) does not include the entry of an adjudication of guilt and

sentence upon the revocation of first-offender status as one of the

categories of cases which requires the filing of a discretionary

application. See OCGA § 5-6-35 (a). If the legislature had intended

to include an adjudication of guilt in that provision, it could have

(and still can), but “we do not have the authority to rewrite statutes,

so when the text is plain, we must follow it.” McKinney v. State, ___

Ga. ___ (899 SE2d 121, 125) (2024) (citation and punctuation

omitted). Therefore, we reject an interpretation that would add to

the statute that which the legislature did not include. Moreover,

OCGA § 5-6-30 directs that the Appellate Practice Act “shall be

liberally construed so as to bring about a decision on the merits of

every case appealed and to avoid dismissal of any case or refusal to

consider any points raised therein, except as may be specifically

referred to in this article.” See Premier Pediatric Providers, LLC v.

Kennesaw Pediatrics, P.C., 318 Ga. 350, 359 (3) (898 SE2d 481)

13
(2024) (“In other words, OCGA § 5-6-30 puts a legislative thumb on

the scale in favor of reaching the merits.”). Accordingly, we do not

interpret OCGA § 5-6-35 (a) in a manner that limits the right to

appeal any more than its text requires.

Further, the text of the First Offender Act does not equate the

entry of an adjudication of guilt to an order revoking probation. 7 See

OCGA § 42-8-60; cf. OCGA § 42-8-34.1 (setting forth conditions and

procedures for revoking probated or suspended sentence under

state-wide probation system); OCGA § 42-8-38 (c) (trial court has

discretion to revoke, modify, or continue probation under state-wide

probation system); OCGA § 42-8-102 (f) (setting forth procedure for

revoking county and municipal probation). Moreover, as Judge

Beasley argued in dissent in Dean, the fact that an adjudication of

guilt often has the effect of revoking a first offender’s probation does

not transform an adjudication of guilt into a probation revocation for

purposes of appeal. 177 Ga. App. at 128 (Beasley, J., dissenting in

7 Indeed, the text of OCGA § 42-8-60 does not once mention a “probation

revocation.” See OCGA § 42-8-60.
14
part). “It is obvious that the General Assembly intended the first

offender probation to have a different effect than probation in other

cases.” Wiley, 233 Ga. at 317.

An important difference between orders revoking ordinary

probation and orders revoking first-offender status is that ordinary

probation is served after a judgment is entered. That affects what

can be appealed when it is revoked: “a mere order revoking

probation proceeds from a sentence based on a judgment entered

previously and the appeal is only from the order.” Dean, 177 Ga.

App. at 128 (Beasley, J., dissenting in part). By the time probation

is revoked in that context, “a defendant has already had the right to

appeal directly all aspects of the formal adjudication of guilt as well

as of the sentence which is bottomed on the judgment of guilt.” Id.

at 127-128 (Beasley, J., dissenting in part) (emphasis added). But

that is not the case in an adjudication of guilt that follows the

violation of conditions of first-offender probation, where although

OCGA § 42-8-64 gives a first-offender the right to a direct appeal,

there has not yet been an adjudication of guilt.

15
During the pendency of a first-offender sentence, there has

been no adjudication of guilt or final judgment, 8 the first offender is

not considered “convicted” as that term is used in Georgia’s Criminal

Code, the “matter remains pending[,]” Smith, 276 Ga. at 265 (2), and

the first offender has the opportunity — upon the satisfactory

completion of the first-offender sentence — to be altogether

exonerated of guilt and stand discharged as a matter of law. See

OCGA § 42-8-60 (e). So when a first-offender sentence is not

completed successfully and the trial court enters an adjudication of

guilt and sentence, this is the first judgment of guilt entered against

that defendant. See OCGA § 42-8-60 (d). At that point, the defendant

stands convicted under Georgia’s Criminal Code, and “the new

sentence is based on a just-arrived at adjudication of guilt” and “may

actually be more severe than the consented-to [first offender]

8 Although the trial court enters a judgment granting a defendant first

offender treatment, this does not constitute a final judgment for purposes of
direct appeal because the case remains pending until the defendant complies
with or violates the terms of first-offender probation. Instead, that initial
judgment is merely “a judgment granting him first offender treatment instead
of imposing a regular sentence with an adjudication of guilt.” Higdon v. State,
291 Ga. 821, 824 (2) (a) (733 SE2d 750) (2012).
16
sentence.” Dean, 177 Ga. App. at 128 (Beasley, J., dissenting in

part). Regardless of the duration of the new sentence imposed, the

entry of an adjudication of guilt is distinct from an order revoking

probation, and Georgia law does not treat them the same for the

purposes of appeal.

c. Claims that the defendant raised or could have raised in
appealing the initial imposition of the first-offender sentence may
well be barred in a subsequent appeal from the entry of an
adjudication of guilt and sentence.

The State argues that the conclusion we have reached today

will give defendants two bites at the direct appeal apple, as

defendants will be entitled to directly appeal both the initial entry

of a first-offender sentence (because OCGA § 42-8-64 says they can)

and the entry of an adjudication of guilt and sentence (because it is

a final judgment under OCGA § 5-6-34). But our holding today is

required by the statutory text, which we cannot change to achieve a

“better” policy outcome. What’s more, our holding does not obviously

have the result the State fears. If a defendant chooses to exercise the

right to a direct appeal provided by OCGA § 42-8-64 upon the initial

17
entry of the first-offender sentence, any argument that the

defendant raises or could have raised in that appeal may well be

barred in a subsequent appeal if that defendant later chooses also to

appeal the entry of an adjudication of guilt. See Walker-Madden v.

State, 301 Ga. 744, 745 (804 SE2d 8) (2017) (“In a second appeal

after remand for resentencing, a criminal defendant may raise

issues relating to the new sentencing order but may not raise issues

that were, or could have been, raised in the first appeal of the case.”).

Accordingly, upon the trial court’s entry of an adjudication of

guilt, Howard was entitled to a direct appeal under OCGA § 5-6-34

(a). Therefore, we reverse the Court of Appeals’s judgment and

remand for further proceedings consistent with this opinion.

Judgment reversed and case remanded. All the Justices concur,

except, LaGrua, J., who dissents.

18
LAGRUA, Justice, dissenting.

Because defendants receiving a first-offender sentence do not

immediately receive convictions, the legislature has permitted them

to file their direct appeals as if they had received a conviction. See

OCGA § 42-8-64. Criminal defendants are normally entitled to a

direct appeal after conviction and must file that appeal within 30

days. See OCGA §§ 5-6-34, 5-6-38 (a). With the Majority Opinion,

now some first-offender defendants could also have 30 years — or

longer — if they decide to avail themselves of their new right to a

direct appeal should the trial court revoke probation and enter an

adjudication of guilt late in a sentence. While some claims may be

barred, the prosecution, defense, and appellate courts will still be

burdened with potentially ancient cases that already had a full

opportunity to appeal. They will be placed in the position of dealing

with failing memories, locating long-gone witnesses, and litigating

matters that should have been litigated years before.

The Majority Opinion recognizes that this result is not the best

19
policy outcome, but nonetheless argues that it is required by the

statutory text. I admit that this is a difficult question, but the grace

of the legislature does not go that far. Rather, I agree with the Court

of Appeals’ longstanding precedent in Dean that correctly looked at

the text of OCGA § 5-6-35 (a) (5) and held that “orders revoking

probation” includes just that — orders revoking probation. See Dean

v. State, 177 Ga. App. 123, 124-125 (1) (338 SE2d 711) (1985). The

fact that some of those revocations might also involve an

adjudication of guilt under OCGA § 42-8-60 (d) does not remove

those revocations from the clear text of OCGA § 5-6-35 (a) (5). The

First Offender Act still calls first-offender probation “probation”

even though the legislature intended it to have a different effect. See

OCGA § 42-8-60 (a)-(g) (referencing “probation” fifteen times).

Therefore, I respectfully dissent.

319 Ga. 114
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