Stratacos v. State

Where a defendant is charged with felony theft by deception based on his failure to fully perform contracted-for services, the State must prove the value of any services the defendant did actually perform.

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We granted certiorari to decide whether the Court of Appeals erred in Stratacos v. State, 312 Ga. App. 783, 786-787 720 SE2d 256 2011, by holding that a felony conviction for theft by deception based on a defendant’s failure to fully perform services as promised, see OCGA § 16-8-3 a and b 5, could stand absent proof of the value of the work actually performed by the defendant. Based on statutory text and precedent that the Court of Appeals overlooked, we conclude that the Court of Appeals did err: Where a defendant is charged under § 16-8-3 a and b 5 for deceitfully promising to perform services, the State must prove the value of any services he performed in order to prove that he intended to ultimately deprive the victim of property.

The Court of Appeals also overlooked a second reason that proof of the value of the services the defendant actually performed was necessary in this case: The State sought felony punishment for violations of § 16-8-3 a and b 5. The statute establishing the penalties for theft offenses sets a monetary threshold for the “property which was the subject of the theft” that makes the crime punishable as a felony rather than a misdemeanor. OCGA § 16-8-12 a 1.1 Thus, if the State seeks only misdemeanor punishment for a § 16-8-3 b 5 violation, it need prove only that the value of the services the defendant actually provided was less than the value of the property he obtained from the victim. In other words, it is necessary to show a shortfall to the victim, but not the particular amount. However, where the State seeks to impose felony punishment for a § 16-8-3 b 5 violation, and thus to increase the maximum statutory penalty for the crime, it must prove that the value of the property the defendant obtained from the victim, less the value of the services he actually performed, exceeded the felony threshold. See Apprendi v. New Jersey, 530 U.S. 466, 476 120 SCt 2348, 147 LE2d 435 2000.

Stratacos v. State

Where a defendant is charged with felony theft by deception based on his failure to fully perform contracted-for services, the State must prove the value of any services the defendant did actually perform.

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