L.A.E., In Interest of

• Decision Date: 22 June 1994
• Docket Number: No. A94A0409,A94A0409
• Citation: 214 Ga.App. 268,447 S.E.2d 627
• Parties: In the Interest of L.A.E., a child.
• Court: Georgia Court of Appeals

Page 627

447 S.E.2d 627

214 Ga.App. 268

In the Interest of L.A.E., a child.

No. A94A0409.

Court of Appeals of Georgia.

June 22, 1994.

Reconsideration Denied July 29, 1994.

Certiorari Granted Jan. 17, 1995.

Mark R. Pollard, for appellant.

Lewis R. Slaton, Dist. Atty., Sally A. Butler, Carl P. Greenberg, Asst. Dist. Attys., for appellee.

JOHNSON, Judge.

L.A.E., a juvenile, was arrested for allegedly shooting and killing another juvenile. A petition charging L.A.E. with murder was filed in the juvenile court on March 24, 1993, and an arraignment was scheduled for March 30, 1993. At the arraignment hearing, the state moved for a continuance on the ground that it needed more time to investigate whether to seek a transfer of the case to superior court. Over L.A.E.'s objection, the court granted the motion. Although it does not appear that the court rescheduled the arraignment, the court did schedule a transfer hearing for May 6, 1993. Prior to the transfer hearing, L.A.E. filed a motion to dismiss the petition because he was still in detention and the adjudicatory hearing had not been set within ten days of the filing of the petition as required by OCGA § 15-11-26(a). The court denied that motion, finding that OCGA § 15-11-26(a) had been complied with because the arraignment hearing had been set within the ten day limit. Thereafter, at the May 6 hearing, the court denied the state's request to transfer the case to superior court. The adjudicatory hearing was held on June 25, 1993, and the court found L.A.E. to be delinquent on the murder charge. L.A.E. appeals.

1. L.A.E. contends that the juvenile court erred in denying his motion to dismiss the petition because no adjudicatory hearing was set within ten days of the filing of the petition. "OCGA § 15-11-26(a) specifies that the court shall fix a date for an adjudicatory hearing on a petition alleging delinquency not later than 10 days from the date of the filing of the petition." (Emphasis supplied.) Johnson v. State, 183 Ga.App. 168, 169(2), 358 S.E.2d 313 (1987); see also J.T.G. v. State of Georgia, 141 Ga.App. 184, 185, 233 S.E.2d 40 (1977). While the adjudicatory hearing itself need not be conducted within ten days of the filing of the petition, the hearing date must be set within that period. In the Interest of L.T.W., 211 Ga.App. 441, 441-442(1), 439 S.E.2d 716 (1993). "[I]f a hearing is set within the statutory time limit, the court may in its discretion grant a continuance." (Citation and punctuation omitted.) In re J.B., 183 Ga.App. 229(2), 358 S.E.2d 620 (1987); Johnson v. State, supra, 183 Ga.App. at 169(2), 358 S.E.2d 313. In the instant case, although L.A.E. was in detention, the juvenile court failed to set a date for an adjudicatory hearing within ten days of the filing of the petition; rather, the court merely scheduled an arraignment hearing within that time limit. ¹

"The arraignment hearing is an optional formal hearing which may be conducted in conjunction with the detention hearing or in a separate hearing. The purpose of the arraignment hearing is to formally advise the child of his rights to counsel, to remain silent and to a hearing before the judge; to advise him of the allegations as they are stated in the petition; and to offer the child an opportunity to enter an admission or a denial to the charges against him." Uniform Juvenile Court Rule 10.1. On the other hand, "[t]he purpose of the adjudicatory hearing is to determine if the allegations contained in the petition are true." Uniform Juvenile Court Rule 11.1. See C.P. v. State, 167 Ga.App. 374, 375(2), 306 S.E.2d 688 (1983). Because of the different purposes for arraignment and adjudicatory hearings, the time limits established by OCGA § 15-11-26(a) cannot be met by substituting an arraignment for an adjudicatory hearing. "Time limits established by the General Assembly in the Juvenile Court Code are jurisdictional and must be strictly adhered to." Crews v. Brantley County Dept. of Family etc. Svcs., 146 Ga.App. 408, 408-409(1), 246 S.E.2d 426 (1978); J.T.G. v. State of Ga., supra, 141 Ga.App. at 185, 233 S.E.2d 40. Here, the juvenile court did not strictly adhere to the ten day time limit and denied L.A.E. his right to a speedy trial by failing to schedule an adjudicatory hearing until three months after the petition was filed. The only available remedy for one denied his right to a speedy trial is dismissal. R.A.S. v. State of Ga., 156 Ga.App. 366, 367, 274 S.E.2d 752 (1980). The trial court erred in denying L.A.E.'s motion to dismiss the petition.

2. In light of our holding in Division 1, we need not address L.A.E.'s other enumeration of error.

Judgment reversed.

McMURRAY and BIRDSONG, P.JJ., ANDREWS and SMITH, JJ., and HAROLD R. BANKE, Senior Appellate Judge, concur.

BLACKBURN, J., concurs specially.

POPE, C.J., and BEASLEY, P.J., dissent.

BLACKBURN, Judge, concurring specially.

I concur specially with Judge Johnson. I agree with the majority that an arraignment and an adjudicatory hearing are not the same and that an arraignment, rather than an adjudicatory hearing, was scheduled by the summons and process in the present case. The dissent fails to acknowledge that the summons and process used herein are form documents that are used to command the appearance of anyone listed to a court appearance of any kind. In the present case, all counsel and the judge referred to the hearing as an arraignment. The judge's order further reflects that he was continuing the arraignment. As opposed to the summons and process forms, the form order used to continue the arraignment required that the type of hearing be listed in the space provided. Here, the judge designated that an arraignment was being continued. The merits of the case were not scheduled to be heard on March 30, 1993. The evidence in the record indicates that those present at the hearing were all in agreement that it was an arraignment that was scheduled to occur.

OCGA § 15-11-26(a) provides that "[a]fter the petition has been filed the court shall fix a time for hearing thereon, which, if the child is in detention, shall not be later than ten days after the filing of the petition. In the event the child is not in detention, the court shall fix a time for hearing thereon which shall be not later than 60 days from the date of the filing of the petition." The statute really provides no meaningful protection for the child if it merely requires the scheduling of the hearing within ten days. The actual date of the hearing could be several months in the future. It is the limitation on the time that the hearing is held, not when it is scheduled, that provides a safeguard for the subject child. If the statute was intended to relate only to the scheduling and not to the conduct of the hearing, why would an additional 50 days be allowed for such an act when the defendant is not in detention, as the detention itself is not a factor in the accomplishment of that task? It is apparent to me that in factual situations such as the one presented herein, the defendant's civil liberties are at stake and the statute must be strictly construed. Crews v. Brantley County Dept. of Family etc. Svcs., 146 Ga.App. 408, 409, 246 S.E.2d 426 (1978) and J.B.H. v. State of Ga., 139 Ga.App. 199, 203, 228 S.E.2d 189 (1976). The adjudicatory hearing, once timely scheduled, can be continued in the discretion of the trial court in a proper case.

In several cases, we have incorrectly stated "that OCGA § 15-11-26(a) requires merely that a hearing date be set within ten days of the filing of the petition and not that the hearing itself be conducted within that period." In the Interest of L.T.W., 211 Ga.App. 441, 442, 439 S.E.2d 716 (1993). See also Johnson v. State, 183 Ga.App. 168, 169, 358 S.E.2d 313 (1987); and P.L.A. v. State, 172 Ga.App. 820, 822, 324 S.E.2d 781 (1984) (Beasley, J., concurring specially). I would disapprove of that statement in those cases, however it is not necessary to overrule them because in each of those cases, the date of the hearing was originally set for a date within ten days of the filing of the petition. Id. While the result of the cited cases was correct, the analysis of OCGA § 15-11-26(a) was not. In Brown v. Fulton County Dept. of Family etc. Svcs., 136 Ga.App. 308(1), 220 S.E.2d 790 (1975) the hearing was originally set for a date not more than ten days after the petition was filed, however, the hearing was continued due to the absence of necessary witnesses. Id. We determined that "the time for the hearing must be set for a time not later than 10 days after the petition [was] filed." Id. at 309, 220 S.E.2d 790. We held that the grant of the continuance was proper and, as the original hearing date was scheduled for a time within ten days from the filing of the petition, the mandates of OCGA § 15-11-26(a) had been satisfied. Id. In J.B. v. State, 171 Ga.App. 373(2), 319 S.E.2d 465 (1984), the date for the hearing was originally set for eight days from the date the petition was filed. Id. Thereafter, a continuance was granted, and the hearing was held at a later time. Id. Our opinion in J.B. did not address the issue before us in this case.

In J.B.H. v. State of Ga., 139 Ga.App. 199, 203, 228 S.E.2d 189 (1976), we determined that the trial court erred in overruling J.B.H.'s motion to dismiss as the delinquency petition was not filed within 72 hours of the delinquency hearing and the adjudicatory hearing was not set for a date within ten days of the filing of the petition. In Crews, supra, the petition was filed and the scheduling of the hearing occurred on November 23, 1975. The hearing date was set for December 5, 1975, 12 days after the petition was filed. We determined that the trial court erred in failing to dismiss the petition as the hearing was untimely held. 146 Ga.App. at 409, 246 S.E.2d 426. In Irvin v. Dept. of Human Resources, 159 Ga.App. 101, 102, 282 S.E.2d 664 (1981), the hearing date was set...