In re Interest of J. M. A.

• Decision Date: 07 February 2017
• Docket Number: A16A1481
• Parties: IN the INTEREST OF J. M. A., a child.
• Court: Georgia Court of Appeals

340 Ga.App. 155

796 S.E.2d 773

IN the INTEREST OF J. M. A., a child.

A16A1481

Court of Appeals of Georgia.

February 7, 2017

Jill Evelyn Roth, for Appellant.

Robert D. James Jr., Dist. Atty., Atlanta, Ramika Renee Gourdine, Asst. Dist. Atty., for Appellee.

Barnes, Presiding Judge.

J. M. A. appeals from the juvenile court's judgment adjudicating him delinquent for violating the conditions of his probation. J. M. A. contends that the juvenile court erred in denying his motion to dismiss the State's delinquency petition for lack of jurisdiction, and he challenges the sufficiency of the evidence to support the court's adjudication of delinquency. For the reasons discussed below, we affirm.

In reviewing a delinquency adjudication, we construe the record in the light most favorable to the juvenile court's ruling. In the Interest of J. W. , 309 Ga.App. 470, 470–471, 711 S.E.2d 48 (2011). So construed, the record shows that on July 18, 2014, 13-year-old J. M. A. was adjudicated delinquent in the Juvenile Court of DeKalb County for criminal attempt to commit burglary and was placed on probation for one year. The specific conditions of J. M. A.'s probation included that he perform 40 hours of community service during his probationary term and pay an initial probation supervision fee of $75 by September 18, 2014.

On July 16, 2015, the State filed a complaint in the juvenile court, alleging that J. M. A. had committed the delinquent act of violating his probation by failing to complete his community service hours and pay the full supervision fee. The complaint cited to OCGA § 15–11–2 (19) (B) (2014),¹ which defines a "delinquent act" to include "[t]he act of disobeying the terms of supervision contained in a court order which has been directed to a child who has been adjudicated to have committed a delinquent act." The State subsequently filed a delinquency petition against J. M. A. that contained the same allegations as the complaint and again cited to OCGA § 15–11–2 (19) (B) as the basis for the charge.

In October 2015, J. M. A. filed a motion to dismiss the delinquency petition. According to J. M. A., the July 18, 2014 probation order upon which the delinquency petition was predicated had expired one year after he had been placed on probation, and there was no statutory or common law basis for tolling his probationary sentence. J. M. A. argued that once the probation order expired, the juvenile court lost jurisdiction to continue to hear any claims brought by the State that he had violated the conditions of his probation. Hence, J. M. A. maintained, the State's delinquency petition ought to be dismissed for lack of jurisdiction.

The juvenile court denied J. M. A.'s motion to dismiss, concluding that J. M. A.'s jurisdictional argument was misplaced because the State had not filed a motion to revoke J. M. A.'s probation, as it could have done under OCGA § 15–11–608 (b). Rather, the juvenile court emphasized, the State had filed a new petition alleging the delinquent act of a violation of probation under OCGA § 15–11–2 (19) (B). Because the State had filed a petition alleging the commission of a new delinquent act rather than sought a revocation of probation, the juvenile court concluded that the question whether the original probationary sentence had expired or been tolled was immaterial. Consequently, the juvenile court ruled that it had jurisdiction to continue to hear the delinquency case, even though the initial term of J. M. A.'s probation had ended.

Following the denial of the motion to dismiss, the juvenile court conducted an adjudicatory hearing in January 2016 on the delinquency charge that J. M. A. had violated the specific conditions of his probation by failing to complete his community service and pay the full supervision fee. Two witnesses testified at the hearing, J. M. A.'s probation officer and his mother. J. M. A. elected not to testify in his own defense.

J. M. A.'s probation officer testified that J. M. A. had only completed 36 of his 40 hours of community service and had an outstanding balance of $55 on his supervision fee when the State initiated the present delinquency proceedings in July 2015. The officer testified that J. M. A. had completed his community service hours by the time of the adjudicatory hearing in January 2016 but still owed the remainder of the supervision fee. The officer further testified that she had sought to work with J. M. A. and his family because of their financial and transportation problems so that J. M. A. could complete the conditions of his probation. In this regard, the officer testified that she allowed J. M. A. great flexibility in choosing where to perform his community service, assisted him in finding a place to perform his community service, and set up a payment plan for the supervision fee with individual payments as low as $7.

J. M. A.'s mother also testified at the hearing. She conceded that J. M. A. had not completed his community service hours until December 2015, several months outside of the one-year probationary term, and still owed $55 of the $75 supervision fee. However, J. M. A.'s mother testified that J. M. A. had been unable to work after April 2015 because he had severely injured his foot, requiring surgery and a period of restricted activity. J. M. A.'s mother further testified that before the injury occurred in April 2015, she did not have a car to transport J. M. A. and no money to provide him with bus fare because she was unemployed, and that no businesses would hire him because of his age.

Nevertheless, J. M. A.'s mother conceded that there had been no physical reason J. M. A. could not do some type of work before his foot injury in April 2015, and that there were many restaurants and other local businesses in the immediate area of the apartment where they lived. She further testified that J. M. A. had not made any efforts of which she was aware to find any type of work, and she had personally only asked one restaurant about the possibility of hiring him. J. M. A.'s mother also admitted that J. M. A. received $725 a month in supplemental security income ("SSI") benefits from Social Security.

At the conclusion of the hearing, J. M. A.'s counsel conceded that J. M. A. had not timely performed all of his community service hours and had not paid the full supervision fee, but he argued that the State had presented insufficient evidence that the probation violations had been wilful. The juvenile court disagreed, stating at the hearing that J. M. A. could have looked for odd jobs like "washing cars" or "sweeping up hair at a barber shop" and there was no evidence that he ever made such efforts. The juvenile court thereafter entered an order adjudicating J. M. A. delinquent for violating his probation, finding "that the allegations of the petition are true, that the acts ascribed to said child were, in fact, committed by said child, and that such acts constitute acts of delinquency ... within the meaning of the law."

The juvenile court released J. M. A. to the custody of his mother. Following a dispositional hearing, the juvenile court placed J. M. A. on probation for 6 months and included as special conditions of his probation that he perform 20 additional hours of community service and pay a supervision fee of $55. This appeal by J. M. A. followed.

1. J. M. A. first contends that the juvenile court erred in denying his motion to dismiss the delinquency petition for lack of jurisdiction. According to J. M. A., the juvenile court no longer had jurisdiction to adjudicate his alleged violations of probation once his original one-year probationary term ended in July 2015 because there was no statutory or common law basis for tolling the probationary period. We are unpersuaded under the circumstances of this case, where the State filed a new delinquency petition under OCGA § 15–11–2 (19) (B) to address J. M. A.'s alleged probation violations rather than a motion to revoke his probation under OCGA § 15–11–608 (b).

As a general rule, once a sentence has been served, the sentencing court loses jurisdiction over the criminal defendant to modify or alter the sentence. State v. Mohamed , 203 Ga.App. 21, 21 (2), 416 S.E.2d 358 (1992). See Sentinel Offender Svcs., LLC v. Glover , 296 Ga. 315, 329 (3) (b), 766 S.E.2d 456 (2014) ("[O]nce a sentence has been served, jurisdiction over the defendant ceases."). Therefore, a sentencing court's jurisdiction to revoke or modify an adult criminal defendant's probation ceases once the term of the defendant's probationary sentence has ended, unless the expiration of the sentence has been tolled based on statutory or common law principles. See Anderson v. Sentinel Offender Svcs., LLC , 298 Ga. 854, 857–858 (1), 784 S.E.2d 791 (2016) ; Glover , 296 Ga. at 329 (3) (b), 766 S.E.2d 456 ; State v. Mills , 268 Ga. 873, 874, 495 S.E.2d 1 (1998) ; Mohamed , 203 Ga.App. at 21 (2), 416 S.E.2d 358.

Here, however, the juvenile court did not revoke or modify J. M. A.'s probationary sentence, but instead adjudicated him delinquent for a new substantive offense, as sought by the State when it filed a new delinquency petition under OCGA § 15–11–2 (19) (B). Notably, revocation of probation is not the exclusive remedy available to the State under Georgia's new Juvenile Code when a juvenile defendant has violated the conditions of his probation. Rather, as this Court recently explained in In the Interest of H. J. C. , 331 Ga.App. 506, 509 (2), 771 S.E.2d 184 (2015),

OCGA § 15–11–2 (19) (B) defines "delinquent acts" as including "[t]he act of disobeying the terms of supervision contained in a court order which has been directed to a child who has been adjudicated to have committed a delinquent act[.]" ... [Thus,] the statute provides a mechanism by which a child who violates probation ordered in a previous adjudication of delinquency may become the subject of a new delinquency petition.... As part of the same statutory scheme, ... OCGA § 15–11–608 (b) provides

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