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Barton v. State

The sentences the trial court imposed following the defendant's convictions on two counts of sexual battery, including one count against a child under the age of 16, were void, because the trial court failed to comply with the O.C.G.A. § 17-10-6.2 split-sentence requirement, as the sentences did not include probation.

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This is Paul Barton’s second pro se appeal arising from his 2013 conviction for two counts of sexual battery, including one count against a child under the age of sixteen OCGA § 16-6-22.1.1 Barton was sentenced by the trial court to two consecutive five-year terms. Barton now appeals from the denial of his motion to set aside his sentence, contending that the trial court erred when it failed to sentence him to a split sentence, which would have included at least one year of probation, as required by OCGA § 17-10-6.2 b. We agree fully. Accordingly, we vacate Barton’s sentence and remand this case to the trial court for resentencing.

“A person convicted of the offense of sexual battery against any child under the age of 16 years shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than one nor more than five years.” OCGA § 16-6-22.1 d.

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