Opinion
A89A0262.
DECIDED MAY 16, 1989. REHEARING DENIED MAY 31, 1989.
Theft by deception. Hall Superior Court. Before Judge Girardeau.
C. Andrew Fuller, District Attorney, Daniel A. Summer, Assistant District Attorney, for appellant.
Eddie Benton, Jr., for appellee.
In the instant case appellee Sosebee was indicted and tried on a charge of theft by deception, the indictment alleging that Sosebee unlawfully obtained $8,000 from the sale of a boat without disclosing the existence of a known valid lien on the property. A Hall County jury found him guilty as charged, and he was sentenced to ten years' confinement and ordered to make restitution in the amount of $500.
The State appeals, alleging that it was error to require restitution of only $500 (the minimum amount required to sustain a conviction) when the indictment averred theft of $8,000. The State bases its appeal on OCGA § 5-7-1 (2), contending that the trial court's order is one which arrests the judgment of conviction on legal grounds, as specified in subsection (2). The State further alleges that the sentence was void and therefore directly appealable.
OCGA § 5-7-1 states the only grounds on which the State may properly appeal in a criminal case, and the statute is construed strictly against the State. State v. Clendinin, 136 Ga. App. 303 ( 211 S.E.2d 71) (1975). See also, e.g., State v. Eaves, 185 Ga. App. 740 ( 365 S.E.2d 535) (1988); State v. Bryant, 182 Ga. App. 698 ( 356 S.E.2d 656) (1987); State v. Asinoff, 173 Ga. App. 573 ( 327 S.E.2d 237) (1985). We find that the order appealed from does not represent any of the statutorily enumerated instances in which the State has the right to appeal. See, e.g., State v. Gribble, 169 Ga. App. 446 ( 313 S.E.2d 720) (1984). We find, moreover, that the sentence below is not void. See State v. O'Neal, 156 Ga. App. 384 ( 274 S.E.2d 575) (1980); cf. State v. Johnson, 183 Ga. App. 236 ( 358 S.E.2d 840) (1987); State v. Shuman, 161 Ga. App. 304 ( 287 S.E.2d 757) (1982). The appeal must be dismissed for lack of jurisdiction.
Appeal dismissed. Birdsong and Benham, JJ., concur.