Aрpellant Ronald Westmoreland filed a notice of appeal pro se “from the judgement [sic] of conviction and sentence entered herein on August 8 [sic], 1988. The offense for which defendant was cоnvicted is theft by taking and the sentence imposed is ... 6 years.” Examining this record in toto, we are satisfied that appellant filed a *174 timely notice of appeal from the judgment of conviction and sentencе, pertaining to Criminal Action No. A-95808, Theft by Taking (two counts), to which sentence was entered on August 18, 1988, and which was filed in open court on August 23, 1988. Accordingly, we are satisfied that the August “8” date contained in the notice of aрpeal is due solely to typographical error.
Appellant initially pled guilty and was convicted in June of 1986 on Indictments A-80808 and A-82851, pertaining to one count of theft by taking of $99,588.25 and one count of passing felony bаd checks, respectively. Appellant retained and was represented by Attorney “F.” In April 1987, a probation revocation hearing was held regarding the probated sentence received as to Indictment A-80808, and certain adjustments were made as to the terms of restitution. Appellant again was represented by Attorney “F.” In April of 1988, a second probation revocation hearing was held, resulting in the revocаtion of six of the eight remaining years of appellant’s probated sentence to confinement. It appears that appellant was again represented by Attorney “F,” and that no request was madе to report this second revocation hearing.
Appellant subsequently was indicted for two counts of theft by taking, under Indictment A-95808. On August 2, 1988, he pled guilty to the two-count indictment. On August 18, 1988, appellant was given a six-year concurrеnt sentence as to each count. Appellant was represented by Attorney “T,” an appointed counsel, at this proceeding.
Appellant filed a notice of appeal and an amended notice of appeal pro se, on June 10, 1988 and June 27, 1988, respectively, attempting to directly appeal the order of the trial court revoking probation in the case involving Indictment A-80808. Appеllant did not file a notice of appeal for direct appeal of the conviction and sentence of either Indictment A-80808 or A-82851. This court dismissed this appeal, A89A0429, but remanded the case to the trial cоurt to hold an indigency hearing and, if authorized, to appoint counsel for the defendant to conduct his appeal. The trial court further was directed to allow the defendant a reasonable time thеreafter to file an out-of-time application for discretionary appeal if this be defendant’s desire after competent advice. The indigency hearing was conducted on February 10, 1989, and Attorney “T” was reappointed as appellant’s counsel at appellant’s request. During the indigency hearing, it was indicated that Attorney “T” initially was led to believe that appellant was only seeking a modification of his sentence.
Since Attorney “T’s” reappointment as appellant’s counsel, nc new or amended notices of appeal have been filed with this court Further, no out-of-time petition for discretionary appeal of the ordeiH revoking appellant’s probation has been filed. Held: I
1. Appellant’s enumeration of errors, labeled as enumerations 4 *175 and B, respectively, are as follows: “A. Appellant. . . did not receive effective assistance of counsel”; and, “B. Appellant. . . did not enter his Guilty Plea intelligently, knowingly, voluntarily and freely.” Each of these enumerations has two sub-parts. While these еnumerations on cursory observation appear to pertain to Appeal No. A89A1102 and Indictment A-95808, examination of the record and the brief filed in appellant’s behalf by Attorney “T” establishes that these twо enumerations pertain only to the conviction and post-trial activities in Indictments A-80808 and A-82851. No direct appeal of the case involving these latter two indictments currently is pending before this court.
OCGA § 5-6-37 pertinently provides that “[u]nless otherwise provided by law, an appeal may be taken to the . . . Court of Appeals
by filing ... a notice of appeal.
The notice shall set forth the title and docket number of the case ... a concise statemеnt of the judgment ... or order entitling the appellant to take an appeal . . . .” (Emphasis supplied.) “ ‘The proper and timely filing of the notice of appeal is an
absolute requirement
to confer jurisdiction upon the appellate court.’ ”
Hester v. State,
This case is distinguishable from
Conway v. State,
We expressly decline to consider whether any appellate court in futuro will grant review of any subsequent out-of-time direct appeal or application for discretionary appeal, which appellant may submit.
2. Appellant аsserts that he did not have a fair investigation into the restitution hearing on the “August 18, 1988 case,” which is the case subject to this direct appeal. Specifically, appellant asserts there were no specific written findings by the court in ordering restitution as required by OCGA §§ 17-14-8 through 17-14-10, and that the probation officer failed to conduct a fair investigation causing appellant to be ordered to pay more than the amount of thе victims’ damages. OCGA § 17-14-9.
a. OCGA §§ 17-14-8 through 17-14-10 “contemplate a hearing and specific written findings by the court in determining whether it
*176
will order restitution and, if so, the amount thereof.”
Cannon v. State,
b. Appellant has also asserted that because of the probation officer’s failure to conduct a fair investigation, appellant has been ordered to pay more than the amount of the victim’s damages in contravention of OCGA § 17-14-9.
“ ‘The amount of restitution ordered may be equal to or less than, but not more than, the victim’s damages.’ OCGA § 17-14-9. ‘ “Damages” means all damages which a victim cоuld recover against an offender in a civil action . . .
based on the same act or acts for which the offender is sentenced. .
. .’ OCGA § 17-14-2 (2).” (Emphasis supplied.)
Lovell v. State,
Pretermitting the question whether specific written findings should now be required and whether the determination of a restitution аmount which included damages in amounts which and to victims who were not named in the indictment was error, is the principle of induced error. Induced error is impermissible.
Edwards v. State,
Further, following the announcement by the probation officer of the amount of restitution found due and owing and following the trial court’s announcement of the $11,000 restitution amount, aрpellant at no time contested that amount on the record. “ ‘ “[A] defendant who does not agree to the amount of restitution ordered by the trial court is
normally
required to contest the issue at the time the condition is imposed.” ’ ” (Emphasis supplied.)
Williams,
supra at 856. Thus,
normally,
appellant’s failure to object when the restitution amount was first announced would preclude him from contesting the issue on appeal. For both of these reasons, we find appellant is not in a position to contest on appeal the amount of restitution ordered. As appellant cannot legitimately contest the amount of damages awarded in this case, it would not be in the best interests of judicial economy to return this case for the purpose of having formal written findings confirming the amount of award entered. The statutory purpose of the hearing and the entering of spеcific written findings is to allow the court to determine whether it will order restitution and, if so, in what amount.
Cannon,
supra at 756. Appellant, in this case, acquiesced at trial with the on-the-record statement of the State asserting that appellant was “now in accord with” the State’s asserted restitution figures. The effect of this acquiescence deprives appellant of his right to complain on appeal of the amount of restitution ordered. See
Whisnant v. State,
Judgment affirmed.