Burns v. State

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, 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 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.

1 Burns v. State, 239 Ga. App. 532, 535-536 (2) (521 SE2d 217).