Burns v. State

Court of Appeals of Georgia

Burns v. State

528 S.E.2d 547, 241 Ga. App. 886, 2000 Fulton County D. Rep. 647, 2000 Ga. App. LEXIS 76

CourtCourt of Appeals of Georgia

DecidedJanuary 20, 2000

DocketA99A1206

StatusPublished

Cited by1 cases

This text of 528 S.E.2d 547 (Burns v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Burns v. State, 528 S.E.2d 547, 241 Ga. App. 886, 2000 Fulton County D. Rep. 647, 2000 Ga. App. LEXIS 76 (Ga. Ct. App. 2000).

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Opinion

McMurray, Presiding Judge.

This case is again before this Court because, after granting certi-orari, 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 SE2d 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, [887]*887and 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 resen-tence him to the mandatory minimum sentence as convicted of a serious violent felony under OCGA § 17-10-6.1.

Decided January 20, 2000. Jackson & Schiavone, Michael G. Schiavone, Steven L. Sparger, for appellant. Spencer Lawton, Jr., District Attorney, Melanie Higgins, Assistant District Attorney, for appellee.

Judgment vacated as to sentence and case remanded with direction.

Andrews, P. J., and Ruffin, J., concur.

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McMurray, Presiding Judge.

This case is again before this Court because, after granting certi-orari, 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 SE2d 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, [887]*887and 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 resen-tence him to the mandatory minimum sentence as convicted of a serious violent felony under OCGA § 17-10-6.1.

Decided January 20, 2000. Jackson & Schiavone, Michael G. Schiavone, Steven L. Sparger, for appellant. Spencer Lawton, Jr., District Attorney, Melanie Higgins, Assistant District Attorney, for appellee.

Judgment vacated as to sentence and case remanded with direction.

Andrews, P. J., and Ruffin, J., concur.

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Bluebook (online)

528 S.E.2d 547, 241 Ga. App. 886, 2000 Fulton County D. Rep. 647, 2000 Ga. App. LEXIS 76, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burns-v-state-gactapp-2000.

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