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State v. Stulb

The plain terms of O.C.G.A. § 42-8-60 a provide that a trial court is only authorized to grant first offender treatment before a defendant has been adjudicated guilty and sentenced.

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Several years after William Archer Stulb was convicted of statutory rape, the trial court granted Stulb’s motion to rescind his full sentence under OCGA § 42-8-34 g and then resentenced him as a first offender. The State of Georgia appeals, contending that the trial court lacked jurisdiction to rescind Stulb’s original sentence in its entirety and grant him first offender treatment after he had been adjudicated guilty of statutory rape. We agree. Accordingly, we reverse the trial court’s order rescinding Stulb’s original sentence and vacate the subsequently entered first offender sentence. This is the second appearance of this case before us. In September 2005, a Columbia County jury convicted Stulb of statutory rape. At the sentencing hearing, the trial court announced a felony sentence of 10 years with 1 year to be served in confinement and the remainder on probation, with additional conditions, fines, and fees.1 Stulb did not receive first offender treatment. After Stulb began serving his sentence, however, the trial court sua sponte resentenced him to a greater term of confinement. The trial court then entered final judgment on the conviction and the increased sentence.

On direct appeal, we affirmed Stulb’s conviction but remanded the case with direction that the original sentence be reimposed. See Stulb v. State , 279 Ga. App. 547 631 SE2d 765 2006. In July 2006, the trial court entered an order reimposing the original sentence. Again, Stulb was not sentenced as a first offender.

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