BURLESON v. THE STATE, 242 Ga. App. 217

Ellington, Judge. Michael D. Burleson was convicted of armed robbery and possession of a hoax device and was sentenced under the first offender act to fifteen years to serve five for armed robbery and five years on probation to run concurrently for possession of a hoax device. The trial court thereafter voided its sentence for the armed robbery count and imposed a sentence of twenty years to serve ten. Burleson appealed to this Court, and we affirmed the convictions and sentences in Burleson v. State, 233 Ga. App. 769 (505 SE2d 515) (1998). Decided February 3, 2000. Robert J. Pinnero, for appellant. John R.

Parks, District Attorney, for appellee. The Supreme Court granted certiorari and reversed our finding that a defendant convicted of one of the serious violent felonies contained in OCGA § 17-10-6.1 was not eligible for first offender treatment under OCGA § 42-8-60. Instead, the Supreme Court held, prior to the 1998 amendments to OCGA §§ 17-10-6.1 and 42-8-60 et seq., a defendant found guilty of a serious violent felony under OCGA § 17-10-6.1 was not precluded from requesting and obtaining first offender treatment. Fleming v. State, 271 Ga. 587 (523 SE2d 315) (1999).

Accordingly, our ruling is vacated, and the judgment of the Supreme Court is made the judgment of this Court. The case is remanded to the trial court for a new sentencing hearing. Sentence vacated and case remanded for resentencing. Pope, P. J., and Ruffin, J., concur.