Burns v. State

Full title: BURNS v. STATE

Court: Court of Appeals of Georgia

Date published: Jan 20, 2000

528 S.E.2d 547 (Ga. Ct. App. 2000)

528 S.E.2d 547

Opinion

A99A1206.

DECIDED: JANUARY 20, 2000.

First offender. Chatham Superior Court. Before Judge Bass.

Jackson Schiavone, Michael G. Schiavone, Steven L. Sparger, for appellant.

Spencer Lawton, Jr., District Attorney, Melaine Higgins, Assistant District Attorney, for appellee.

MCMURRAY, Presiding Judge.

This case is again before this Court because, after granting certiorari, the Supreme Court of Georgia by order of November 19, 1999, remanded the case for application of its later decision in Fleming v. State, 271 Ga. 587 ( 523 S.E.2d 315). In Fleming, the Supreme Court held that prior to the 1998 amendments to OCGA § 17-10-6.1 and the First Offender Act, OCGA § 42-8-60 et seq., a defendant found guilty of a serious violent felony under OCGA § 17-10-6.1 was not barred from requesting and obtaining first offender treatment. Id. Accordingly, upon application of such holding, Division 2 of the prior judgment of this Court in the case sub judice¹ is vacated as to sentence, and the judgment of the superior court as to sentence is vacated. The case is remanded with direction that the superior court consider defendant's first offender petition and resentence him thereunder, if appropriate, see, e.g., Stinnett v. State, 214 Ga. App. 224 ( 447 S.E.2d 165) (first offender treatment discretionary in trial court), or resentence him to the mandatory minimum sentence as convicted of a serious violent felony under OCGA § 17-10-6.1.

1 Burns v. State, 239 Ga. App. 532, 535-536 (2), ( 521 S.E.2d 217).

Judgment vacated as to sentence and case remanded with direction. Andrews, P.J., and Ruffin, J., concur.

MCMURRAY, Presiding Judge.

DECIDED JANUARY 20, 2000.