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Burns v. State

On remand from the Supreme Court, the Court of Appeals vacated defendant's sentence and remanded with direction that the trial court consider defendant for first offender treatment, since he was convicted of a serious violent felony before O.C.G.A. § 17-10-6.1 was amended to bar that treatment.

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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 __SE2d__. 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 SE2d 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.

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