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Horton v. State

The trial court should have considered defendant for first offender treatment since he committed armed robbery before the legislature barred application of the First Offender Act to defendants convicted of serious violent felonies.

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DeWayne Horton and co-defendant Lonnie Burns were convicted of armed robbery and possession of a firearm during the commission of a felony. The evidence revealed within minutes after the armed robbery of a convenience store, police stopped Horton and Burns in the vicinity while they were driving away from the store in a vehicle which contained the ski masks, a gun, and identifiable money associated with the robbery. Horton appeals, raising three enumerations of error: i denial of his motion to suppress, ii refusal to sentence him as a first offender, and iii sufficiency of the evidence. We affirm.

1. Arguing police did not have probable cause to stop the vehicle or to arrest him, Horton contends the trial court erred in denying his motion to suppress the evidence found in the vehicle. This precise argument was based on the same record and facts were raised by co-defendant Burns in his separate appeal and was found to be without merit. Burns v. State, 239 Ga. App. 532 1 __SE2d__ 1999 remanded on other grounds, Burns v. State, Case No. S99C1729, November 19, 1999. We see no reason to reiterate the facts and analysis here.

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