However, the imposition of a 20-year sentence was greater than the 10-year confinement order (which was probated), and the trial court could not re-sentence the defendant to a greater term than that originally given him under the sentence of 10 years even if it recited same was "under the First Offender Act." This case is entirely different from that of State v. Wiley, 233 Ga. 316, 317 ( 210 S.E.2d 790), reversing Wiley v. State, 131 Ga. App. 511 ( 206 S.E.2d 140), wherein a probationary sentence of three years was entered under the First Offender Act ("preliminary only") wherein if same had been completed without violation "permits the offender complete rehabilitation without the stigma of a felony conviction." Here the trial court also entered, conjunctively with the first offender sentence, a "Sentence of Probation" sentencing the defendant to confinement for a period of 10 years even though reciting same was "under the First Offender Act" and ordered that the defendant serve said period upon probation.

Code Ann. § 27-2713. The opinion of the Court of Appeals affirming the sentence relies on State v. Wiley, 233 Ga. 316 ( 210 S.E.2d 790) (1974), and Crawford v. State, 144 Ga. App. 622 ( 241 S.E.2d 492) (1978). This court held in Wiley that when adjudication of guilt is entered pursuant to § 27-2727, the court may enter "any sentence permitted by law," including a greater sentence than the one originally imposed under the first offender law.

"Rather, under the Act `sentence' is deferred while the defendant is given an opportunity by the trial court to show that he is capable of comporting himself as a responsible, law-abiding citizen; i.e., he is given a chance to rehabilitate himself without the stigma of a felony conviction. State v. Wiley, 233 Ga. 316 ( 210 S.E.2d 790) (1974). If he successfully fulfills the terms of his probation, `the defendant shall be discharged without court adjudication of guilt. (Emphasis supplied.)

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 S.E.2d 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.

Thus, as we have noted, the First Offender Act "permits the offender complete rehabilitation without the stigma of a felony conviction." State v. Wiley , 233 Ga. 316, 317, 210 S.E.2d 790 (1974). Notably, OCGA § 42-8-60 (e) does not require, as a condition of exoneration, that a first offender not have his probation revoked during the term of the first-offender sentence.

Under the first offender statute, the case "has, in effect, been suspended" during the period of probation. State v. Wiley, 233 Ga. 316, 317 ( 210 S.E.2d 790) (1974); State v. Boyd, 189 Ga. App. 617, 618 ( 377 S.E.2d 11) (1988). Davis's 1991 first offender probation had not been revoked prior to his 1997 convictions, and therefore had not become convictions.

In this case the state contends that under our First Offender Act (Ga. L. 1968, p. 324; Code Ann. § 27-2727 et seq.), a person treated as a first offender is placed upon probation "without entering a judgment of guilt" (Code Ann. § 27-2727); that upon fulfillment of the terms of probation the first offender is discharged "without court adjudication of guilt," and that such discharge shall "completely exonerate" the defendant of any criminal purpose who shall thereafter "not be considered to have a criminal conviction" (Code Ann. § 27-2728). In State v. Wiley, 233 Ga. 316, 317 ( 210 S.E.2d 790), the court pointed out that under our first offender statute, the trial "has, in effect, been suspended" during the period of probation and rehabilitation. Thus, under our law, the formal act of "conviction" is not completed for a person who satisfactorily completes the probationary period.

For example, in adult criminal cases a violation of probation usually results in the activation of a previously imposed sentence because, on probation, the defendant is “merely serving his sentence outside the confines of prison.” State v. Wiley, 233 Ga. 316, 318, 210 S.E.2d 790 (1974). In juvenile cases a probation violation results in a new disposition, usually imposing probation or even confinement, since there is generally no suspended term of confinement in juvenile cases imposing probation.

The purpose is to allow the first offender an opportunity for rehabilitation without the stigma of a criminal conviction. State v. Wiley, 233 Ga. 316, 317 ( 210 S.E.2d 790) (1974). It is undisputed that Higdon had never previously been convicted of a felony and was otherwise eligible to be sentenced as a first offender.

Clark v. State, 236 Ga. App. 153, 155 (2) ( 510 S.E.2d 907) (1999). Couch's argument that he can only be sentenced to two years under O.C.G.A. § 42-8-34.1 is not enumerated as error and is not before us. See also State v. Wiley, 233 Ga. 316, 318 ( 210 S.E.2d 790) (1974) ("No former adjudication of guilt having been made and no prior sentence having been entered thereon, the defendant is subject to receive any sentence permitted by law for the offense he has been found guilty of committing.") Judgment affirmed. Sentence vacated with direction. MILLER and MIKELL, JJ., concur.