J. W. A. v. State, 49347

• Decision Date: 20 September 1974
• Docket Number: 2,No. 49347,3,Nos. 1,49347,s. 1
• Citation: 210 S.E.2d 24,133 Ga.App. 102
• Parties: J. W. A. v. STATE of Georgia
• Court: Georgia Court of Appeals

Page 24

210 S.E.2d 24

133 Ga.App. 102

J. W. A. v. STATE of Georgia.

No. 49347.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

Sept. 20, 1974.

Rehearing Denied Oct. 24, 1974.

Greer, Sartain & Carey, R. Thomas Jarrard, Gainesville, for appellant.

Jeff C. Wayne, Dist. Atty., Gainesville, Kenneth R. Keene, Cleveland, for appellee.

Barry B. McGough, John L. Cromartie, Jr., Atlanta, amicus curiae.

Syllabus Opinion by the Court

QUILLIAN, Judge.

Error is assigned to the action of the trial judge in transferring this case from the juvenile court to the superior court. The juvenile in this case has been indicted by the grant jury for arson. The facts are thus identical to those in J.E. v. State of Ga., 127 Ga.App. 589, 590, 194 S.E.2d 288, 289, (decided Nov. 17, 1972), where this court held: 'A reversal of the juvenile court for erroneous transfer would be a useless act since the superior court has independently exercised its constitutional jurisdiction in receiving the indictment for trial.' This court in that case gave full consideration to the 1971 Juvenile Court Code of Georgia and especially to Code Ann. § 24A-2501 (Ga.L.1971, pp. 709, 736).

The Constitutional Amendment to Article VI, Section IV, Paragraph I (Code Ann. § 2-3901) adopted November 7, 1972 sets out in the resolution the following: 'Proposing an amendment to the Constitution so as to provide for concurrent jurisdiction over juvenile offenders in the Superior and Juvenile Courts.' Ga.L.1972, p. 1544. (Emphasis supplied.) Georgia L.1973, pp. 882, 883, although superseding Code Ann. § 24A-301 (Ga.L.1971, pp. 709, 712) contains substantially identical language to that found in the 1971 Act with regard to the jurisdiction of the Juvenile Courts. It reads: 'The court shall have exclusive original jurisdiction over juvenile matters and shall be the sole court for initiation action: (1) Concerning any child; (A) who is alleged to be delinquent . . .' Under Code Ann. § 24A-401 (Ga.L.1971, pp. 709, 713; 1973, p. 579; 1973, pp. 882, 884), 'delinquent act' is defined as: 'an act designated a crime by laws of Georgia.'

In Mathis v. State, 231 Ga. 401(5), 202 S.E.2d 73, it was contended that the proceedings in the juvenile court certifying the appellant to the superior court did not meet the requirements of the law and that the superior court did not have jurisdiction to try him for the offenses charged. The Supreme Court held: 'The superior court has constitutional jurisdiction to try a person accused of a felony if he has reached the age of criminal responsibility. Nothing in the Juvenile Court Code or in the proceedings of a juvenile court can abrogate this jurisdiction.' 231 Ga. p. 404, 202 S.E.2d p. 77. In construing the constitutional amendment, the Supreme Court pointed out that such amendment 'only provides that the jurisdiction of the superior courts over juvenile felony offenders is not exclusive, 'in the case of juvenile offenders as provided by law." 231 Ga. p. 405, 202 S.E.2d p. 77. The Act of 1973 (Ga.L.1973, p. 882 [133 Ga.App. 104] et seq.) insofar as it might conflict with the 1972 Constitutional Amendment must yield to such paramount authority. The rulings in the J.E. case, supra, and the Mathis case, supra, are controlling here.

Judgment affirmed.

BELL, C.J., EBERHARDT and PANNELL, P. JJ., and STOLZ and WEBB, JJ., concur.

BEEN and EVANS, JJ., concur specially.

CLARK, J., dissents.

DEEN, Judge (concurring specially).

Were it not for Mathis v. State, 231 Ga. 401, 202 S.E.2d 73, after the juvenile court took jurisdiction it would have to retain it unless the statute was followed in transferring it to the superior court. As I understand the constitutional amendment, it simply gave the juvenile court and the superior court concurrent jurisdiction over juvenile felonies, whereas before that the superior court had had exclusive felony jurisdiction. It also (by saying 'as provided by law') gave the legislature the authority to say under what terms such transfer could be made. The legislature did this under Code Ann. § 24A-2501.

The general rule is that the court first taking jurisdiction of a question, where two courts have concurrent jurisdiction, will retain it. Hardeman & Sparks v. Battersby, 53 Ga. 36; McCord v. Walton, 192 Ga. 279, 14 S.E.2d 723. Applying the rule, it was held in Breeden v. Breeden, 202 Ga. 740, 44 S.E.2d 667, that where the superior court had obtained custody jurisdiction in a divorce action the plaintiff could not dismiss and sue out a habeas corpus in the court of ordinary.

In Carstarphen v. Dayton, 222 Ga. 138, 149 S.E.2d 103, the juvenile court took first jurisdiction of a custody matter. A habeas corpus was brought in the superior court thereafter, by one not a party to the juvenile court case. It was held that 'since the juvenile court first assumed jurisdiction of the subject matter and expressly retained jurisdiction . . . we agree that the superior court should not determine the issues.' Superior court action ordered transferred to juvenile court.

I conclude from all this that the juvenile court, which first took jurisdiction (the juvenile court and the superior court having concurrent jurisdiction over the juvenile accused of a felony) should retain it unless the transfer is pursuant to the hearing required by Code § 24A-2501.

But as I read Mathis, a contrary decision was arrived at, where the Supreme Court simply said the indictment was good, without deciding whether the juvenile court which originally took jurisdiction held a proper hearing or not. I think we are bound by Mathis. Therefore, the pending indictment renders this case moot and it should be dismissed.

I am authorized to state that Judge EVANS joins in this special concurrence.

CLARK, Judge (dissenting).

Although I recognize the majority opinion is dispositive of the legal question presented, I find it necessary to enlarge upon the facts in order to express my dissenting views.

The record begins with a petition filed December 20, 1973 for an adjudicatory hearing in the Juvenile Court of White County under the provisions of Code Ann. § 24A-2201 (Ga.L.1971, pp. 709, 732). In part this petition alleges '1. That said child is delinquent, unruly, deprived. 2. Arson and that said child is in need of supervision, treatment and rehabilitation, that it is in the best interest of the child and the public that this proceeding be brought.' The petition further adds with reference to the arson allegation that 'Said youth along with three adults did set fire to the Blue Creek Baptist Church in White County, Georgia.' Our record does not show written notice of the time, place and purpose of this hearing to have been given the child or his mother (the sole surviving parent) as required by Code Ann. § 24A-2501(a)(2). It should be noted, however, that at the adjudicatory hearing on this petition held January 16, 1974 the juvenile was capably represented by court appointed counsel who has brought the instant appeal.

The hearing transcript shows that at its conclusion the able superior court judge serving as judge of the Juvenile Court of White County stated 'I am still going to have to look into this question of whether the district attorney wants to treat it as a grand jury matter or whether it is a juvenile question, and I think we just better have a conference around here in the next day or two and we will get the district attorney to decide what to do about it . . .' (T. 32). In the court's order entered that same day transferring the matter to the Superior Court there are recited the factual findings including a statement that 'this matter should be transferred to the office of the district attorney for presentation to the White County Superior Court for disposition.' (R. 4). It is from this judgment of January 16, 1974, that the juvenile's motice of appeal was filed on February 13, 1974. Thereafter the juvenile was jointly indicted with three adults at the April Term for arson. This indictment was then added to the record in this court followed by a motion from the State that the juvenile court's transfer judgment from which appeal has been taken should be considered moot.

The filing of the indictment and the motion for dismissal based upon mootness transformed the nature of this appeal. Instead of our consideration being limited to the legal validity of the juvenile court proceedings we must decide if a subsequent indictment in the superior court operates ipso facto to deprive the juvenile court of its previously obtained jurisdiction over the juvenile.

It is clear under our decision in Reed v. State of Ga., 125 Ga.App. 568, 188 S.E.2d 392 that the transfer judgment standing alone was erroneous because the instant adjudicatory hearing was held without meeting the statutory service requirements which must be shown before there can be a transfer of a criminal case from the juvenile court to other courts. We there noted the Juvenile Court Code required 'notice in writing of the time, place, and purpose of the hearing is (to be) given to the child and his parents, guardian, or other custodian at least three days before the hearing.' Code Ann. § 24A-2501(a) (2). See also D. M. N. v. State, 129 Ga.App. 165, 199 S.E.2d 114 where our court spelled out in detail the various prescribed conditions which must be complied with before the juvenile court may transfer the case to the superior court.

The writer is respectfully in disagreement with the majority's position that the cases of J.E. v. State of Georgia, 127 Ga.App. 589, 194 S.E.2d 288 and Mathis v. State of Ga., 231 Ga. 401(5), 202 S.E.2d 73 are controlling upon the present appeal. J.E. v. State, supra, was concerned only with the provisions of the 1971 Act, pp. 709-757. It was decided prior to and without reference to the 1972 Constitutional Amendment and the 1973 Amendments to the Juvenile Code and therefore did not take these legislative changes into consideration.

The Supreme...