State v. Stuckey , 145 Ga. App. 434 ( 1978 )

Smith, Judge,

dissenting.

Stuckey pleaded guilty to an indictment charging him with armed robbery and aggravated assault, and the trial court sentenced him to five years* imprisonment, all of which were probated. The state, contending the sentence was null and void because probation is not allowed by law on an armed robbery conviction, filed a "motion to amend sentence.” The motion was denied, and the state has filed this appeal from the denial of that motion. Since there is no specific authorization in our law for the state to appeal the denial of a motion to amend sentence, the appeal should be dismissed.

At the outset, I agree with the majority’s view that a sentence of probation is not authorized following a conviction for armed robbery. Code § 26-1902 (b). And I disagree with Stuckey’s contention that probating a sentence is within the trial court’s inherent powers. See Neal v. State, 104 Ga. 509 (30 SE 858) (1898). However, since the state’s appeal in this case is not authorized by any law, this court is without jurisdiction to force the trial court to conform with the above Code section.

The instances in which the state may appeal are exclusively prescribed by Ga. L. 1973, pp. 297, 298 (Code Ann. § 6-1001a). The law simply does not allow an appeal from denial of a motion to amend sentence. The state contends that the order denying the motion should be construed as "an order arresting judgment of conviction upon legal grounds,” thus making it appealable under Section 1(b) of the 1973 Act (Code Ann. § 6-1001a (b)). Such construction. would be unreasonable; there is no order arresting judgment in this case. The statute allowing the state to appeal in criminal cases is in derogation of prior law and must be strictly construed against the state. State v. Hollomon, 132 Ga. App. 304 (208 SE2d 167) (1974). However desirable it may be to entertain an appeal in certain cases, if the state’s appeal does not fit within one of the specific conditions of the statute, it must be dismissed. State v. Warren, 133 Ga. App. 793 (213 SE2d 53) (1975).

Finally, the trial court’s sentence is not appealable by the state merely because it is void, notwithstanding the general rule that a void judgment can be attacked in any court at any time. The Supreme Court made it clear in Potts v. State, 236 Ga. 230 (223 SE2d 120) (1976), that the voidness of á judgment in a criminal case gives the state a right to appeal only when the defendant had not yet been put in jeopardy. Where jeopardy had not attached prior to the judgment, Potts, supra, controls, and the state may appeal the judgment. Where jeopardy has attached prior to the judgment City of Manchester v. Rowe, 60 Ga. App. 567 (3) (4 SE2d 477) (1939), and State v. B’Gos, 175 Ga. 627 (165 SE 566) (1932), control, and the state may not appeal the judgment unless the case fits within the specific terms of Ga. L. 1973, p. 297 et seq. (Code Ann. Ch. 6-10a). Additionally, Potts and the case on which it relied, Darden v. Ravan, 232 Ga. 756 (208 SE2d 846) (1974), are fundamentally distinguishable in that they both involved judgments which the trial court had no jurisdiction to issue. In this case, the voidness does not spring from a lack of jurisdiction.

In summary, jeopardy had attached, and the circumstances do not fit within any of the provisions of the statute allowing the state an appeal; hence, the appeal should be dismissed.