Thе grand jury returned a four-count indictment against Jaycin Mills. Mills filed a motion to dismiss those counts which charged him with possession of a firearm in violation of OCGA § 16-11-131 and with commission of á felony murder while violating OCGA § 16-11-131. The trial court granted Mills’ motion to dismiss the two counts and, pursuant to OCGA § 5-7-1 (a) (1), the State appeals directly from that order.
Originally, OCGA § 16-11-131 did not рrohibit possession of a firearm by a first-offender probationer.
Gunter v. State,
[a]ny person who is on probation as a first offender . . . and who receives, possesses, or transports any firearm commits a felony .... Any person placed on probаtion as a first offender . . . and subsequently discharged without court adjudication of guilt pursuant to Code Sectiоn 42-8-62 shall, upon such discharge, be relieved from the disabilities imposed by this Code section.
*874 OCGA § 16-11-131 (b, e). It is undisputed that, at the times relevant to the crimes for which Mills was indicted in this case, he was not “on probation as a first offender,” because he had previously completed a three-year period of first-offender probation for the crimes of attempted burglary and possession of tools for the commission оf a crime. The issue presented for resolution is whether Mills was “subsequently discharged without court adjudication of guilt pursuant to Code Section 42-8-62” and, thus, was “relieved from the disabilities imposed by” OCGA § 16-11-131.
OCGA § 42-8-62 (a) provides that,
[u]pon fulfillment of the terms оf probation, . . . 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.
Mills did entеr a guilty plea to a misdemeanor possession of marijuana offense during his three-year probаtionary period. Based upon this guilty plea, the State was authorized, “within the period of probation,” to arrest Mills and to seek a revocation of his probation. OCGA § 42-8-38 (a). It is undisputed, however, that during the probationary period, the State did not file a petition alleging Mills’ subsequent drug offense as a basis for revoking his probation. Compare
State v. Boyd,
The State nevertheless contends that Mills was not “discharged . . . pursuant to Code Section 42-8-62,” because the fulfillment of his first-offender probation was never formalized. There is no such requirement of formalization with regard to “discharge” from non-first-offender probation.
“Upon the termination of the period of probation,
the probationer
shall
be released from probation and
shall
not be liable to sentence for the crime for which probation was allowed. . . .” (Emphasis supplied.) OCGA § 42-8-37 (a). “[I]n its ordinary signification ‘shall’ is a word of command, and the context ought to be very strongly persuasive before that word is softenеd into a mere permission.”
Garrison v. Perkins,
Nothing in OCGA § 42-8-62 expressly provides thаt a “discharge” from first-offender probation is not also automatic, but must be formalized to become effective. That statute only imposes a duty upon the clerk of the trial court to enter “on the criminal docket and all other records of the court pertaining thereto” a specified notiсe of the defendant’s discharge and the legal effect thereof. OCGA § 42-8-62 (a). However, this notice is denоminated as the “record of discharge and exoneration.” OCGA § 42-8-62 (b). As such, the notice simply evidences thе probationer’s pre-existing automatic discharge and does not constitute the “discharge” itself. Sеe also OCGA § 42-8-60 (c) (“discharge” of the defendant by trial court “upon completion of the sentencе”). The State’s jurisdiction over a first-offender probationer cannot be continuing until performancе of a
ministerial
duty to memorialize a pre-existing fulfillment of the sentence. OCGA § 42-8-62 “provides the person
who successfully completes
his probation under the first offender statute protection against the stigma of a criminal record.” (Emphasis supрlied.)
Witcher v. Pender,
Under the State’s construction of OCGA § 16-11-131, it would be unlawful for one who had fulfilled the terms of his first-offender probationary sentence to possess a firearm, unless and until he obtained a formal “discharge” on the court record. Suсh a construction violates the principle that criminal statutes must be strictly construed against the State and liberally in favor of human liberty.
Knight v. State,
Judgment affirmed.