D. P. v. State

• Citation: 129 Ga.App. 680,200 S.E.2d 499
• Decision Date: 18 September 1973
• Docket Number: No. 3,No. 48566,48566,3
• Parties: D.P. v. STATE of Georgia
• Court: Georgia Court of Appeals

Page 499

200 S.E.2d 499

129 Ga.App. 680

D.P. v. STATE of Georgia.

No. 48566.

Court of Appeals of Georgia, Division No. 3.

Sept. 18, 1973.

Miles B. Sams, Forest Park, for appellant.

Lewis R. Slaton, Dist. Atty., Morris H. Rosenberg, George G. Geiger, Carter Goode, Atlanta, for appellee. Syllabus Opinion by the Court

STOLZ, Judge.

The appellant, a juvenile, was brought before the Juvenile Court of Fulton County on a petition alleging his delinquency in that he had committed the offense of burglary. Upon hearing the evidence, the court found that the evidence failed to show beyond a reasonable doubt that the juvenile had committed burglary. The court did find that the juvenile had committed the offense of theft by receiving stolen goods. The court adjudicated the juvenile a delinquent in need of supervision and rehabilitation, and placed him on probation, from which judgment the juvenile appeals. Held:

1. The filing of a notice of appeal serves to supersede a judgment, and while on appeal, the trial court is without authority to modify, supplement, or vacate its judgment. aetna Cas. &c. Co. v. Bullington, 227 Ga. 485(1), 181 S.E.2d 495; Sumbry v. Land, 127 Ga.App. 786(1), 195 S.E.2d 228 and cits. Accordingly, the trial court's order-entered after the filing of the notice of appeal in this case-attempting to vacate the prior judgment appealed from, though rendered during the same term of court and though constituting a correct application of the law, was a nullity, hence does not render moot the appeal from the prior judgment.

2. The appellant contends that there is a fatal variance between the offense alleged as the basis for delinquency (burglary) and the offense found as the basis for the adjudication of his delinquency (receiving stolen goods).

While cases in the juvenile court are not criminal proceedings, Code Ann. § 24A-2401 (Ga.L.1971, pp. 709, 736), due process must always be scrupulously adhered to.

The statutory contents of petitions alleging delinquency are set out in Code Ann. § 24A-1603 (Ga.L.1971, pp. 709, 726). Here it should be noted that former Code Ann. § 24-2411 (Ga.L.1951, pp. 291, 299; 1968, pp. 1013, 1022), which was repealed by Ga.L.1971, pp. 709, 756, and concerned itself with the same subject matter, contained the following: 'In addition, the petition shall set forth, with specificity, the Federal, State or local law or municipal ordinance alleged to have been violated or attempted to have been violated, either in the terms and language of the particular code, or so plainly that the nature of the offense charged may easily be understood by the child and his parents or guardian.'

The offense of receiving known stolen goods is 'an offense wholly dissimilar from burglary in its nature and characteristics. One is accomplished by the presence and use of active force . . . whilst in the other is an utter absence of every element of burglary, as well as a transaction totally distant in time, place, circumstances, grade and punishment; one a felony, the other a misdemeanor.' Gilbert v. State, 65 Ga. 449, 451. 'Under the Criminal Code of Georgia, Section 26-1806, theft by receiving stolen property (a misdemeanor) requires a receiving, disposing or retaining of stolen property which the accused knows or should know was stolen (Ga.L.1968, pp. 1249, 1292; 1969, pp. (857, 859) while the offense of burglary (Criminal Code § 26-1601) requires an entering or remaining in a building without authority with intent to commit a felony or theft therein. Nowhere is there an allegation of receiving, disposing or retaining of stolen property.' Gearin v. State, 127 Ga.App. 811, 812, 195 S.E.2d 211, 212.

We must now address ourselves to the resolution of two questions: (1) Since Code Ann. § 24A-1603 requires only 'a statement that it is in the best interest of the child and the public that the proceeding be brought and, if delinquency or unruly conduct is alleged, that the child is in need of supervision, treatment or rehabilitation, as the case may be', is the allegation that the juvenile committed burglary merely surplusage...