June 2, 2015
Modification of sentence. Gwinnett Superior Court. Before Judge Schrader.
Judgment reversed and sentence vacated.
Daniel J. Porter, District Attorney, John A. Warr, Assistant District Attorney, for appellant.
Chelsea E. Spain, pro se.
DILLARD, Judge. Ellington, P. J., and McFadden, J., concur.
In 2011, Chelsea Spain was convicted by a jury of entering an automobile with intent to commit theft. Although she was eligible to be treated as a " first offender," Spain declined to request such a sentence from the trial court. Then, roughly two years later, Spain moved the trial court to modify her sentence and grant her first-offender status. The trial court granted that motion, and the State appeals, arguing that the court lacked jurisdiction to retroactively resentence Spain as a first offender. We agree, and therefore, the trial court's order modifying Spain's original sentence is reversed and her first-offender sentence is vacated.
On February 1, 2011, a jury convicted Spain of entering an automobile with the intent to commit theft. The trial court sentenced Spain to four years of probation, with forty-eight hours to serve in confinement. Because this was Spain's first felony conviction, she was eligible to be sentenced as a first offender. But after consulting with her counsel, Spain ultimately decided against requesting that the trial court sentence her under this statutory scheme.
[332 Ga.App. 413] On November 18, 2013, after serving more than half of her term of probation, Spain filed an " extraordinary motion to modify sentence," seeking to be resentenced as a first offender. In her motion, Spain acknowledged that, during sentencing, she was advised of her eligibility to be sentenced as a first offender, and that she elected not to seek a sentence under the First Offender Act. Nevertheless, Spain indicated that, since that time, she realized the negative effects of having a felony conviction, and that she now desired first-offender status to allow for greater employment opportunities. After a hearing, the trial court granted her motion, finding that Spain was " overcome with emotion" during her initial sentencing hearing, and she " may not have had a clear understanding of her decision in rejecting the opportunity afforded to her by the State and the Court to be sentenced under the First Offender Statute." This appeal by the State follows.
In its sole enumeration of error, the State argues that the trial court lacked jurisdiction to resentence Spain as a first offender. We agree.
The First Offender Act provides, in relevant part:
Upon a verdict or plea of guilty 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 as provided by law; or (2) Sentence the defendant to a term of confinement as provided by law.
In interpreting this statutory provision, we have recognized that by the " plain terms of the statute," a trial court is only authorized to grant first-offender treatment " before a defendant has been adjudicated guilty and sentenced."  Thus, while the decision of whether or not to sentence a defendant as a first offender lies entirely within the [332 Ga.App. 414] discretion of the trial court, that discretion disappears entirely once a defendant has been adjudicated guilty and sentenced. And here, the trial court resentenced Spain as a first offender long after entering its final judgment on her felony conviction and sentencing her accordingly. As a result, the trial court was not at liberty to " unwind the clock and modify the final judgment of conviction and sentence in order to grant first offender treatment,"  and its " attempt to do so ... was a mere nullity." 
For all of the foregoing reasons, the trial court lacked jurisdiction to resentence Spain under the First Offender Act. We, therefore, reverse the trial court's judgment granting Spain's motion to modify her sentence, and vacate her first-offender sentence, with the result being that her original sentence is rendered in full force and effect.
Judgment reversed and sentence vacated.
Ellington, P. J., and McFadden, J., concur.