M.D.C., In Interest of
Decision Date | 15 July 1994 |
Docket Number | No. A94A0262,A94A0262 |
Citation | 447 S.E.2d 143,214 Ga.App. 59 |
Parties | In the Interest of M.D.C., a child. |
Court | Georgia Court of Appeals |
Fuller & McFarland, Thomas R. McFarland, Cecilia M. Cooper, Americus, for appellant.
John R. Parks, Dist. Atty., Henry O. Jones III, Asst. Dist. Atty., for appellee.
M.D.C., a juvenile, was charged with the commission of the delinquent act of burglary. A petition alleging the commission of delinquent acts and a violation of probation was filed August 5, 1993. The adjudicatory hearing was scheduled to be held August 17, 1993. M.D.C. moved to dismiss the petition as the hearing date was not set for a date within ten days of the filing of the petition. The trial court denied the motion to dismiss and adjudicated M.D.C. delinquent. M.D.C. appeals the trial court's adjudication and disposition of the juvenile delinquency petition.
On appeal, M.D.C. asserts that the trial court's determination that OCGA § 15-11-26(a) required only that a hearing date be set within ten days, regardless of the date of the hearing was in error. We agree and reverse.
OCGA § 15-11-26(a) provides that
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 v. Brantley County Dept. of Family etc. Svcs., 146 Ga.App. 408, 409, 246 S.E.2d 426 (1978), a case factually similar to the present case, we determined that the trial court erred in failing to dismiss the petition as the hearing date was set for a date 12 days after the petition was filed. 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 for a date beyond ten days from the filing of the petition and we reversed the trial court's denial of Irvin's motion to dismiss. In Sanchez v. Walker County Dept. of Family etc. Svcs., 237 Ga. 406, 408, 229 S.E.2d 66 (1976), the Georgia Supreme Court acknowledged that the hearing date must be set for a date within ten days from the filing of the petition, but did not reverse on that issue as Sanchez had failed to preserve his objection at the trial court.
In Judge Beasley's special concurrence in P.L.A. v. State, 172 Ga.App. 820, 822, 324 S.E.2d 781 (1984), she wrote, (Citations, punctuation, and footnote omitted.)
In several cases, we have 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). This is an incomplete statement of the law. However, it is not necessary to overrule these cases because in each of them, the date of the hearing was originally set for a date within ten days of the filing of the petition. Id. Due to properly granted continuances, the actual hearings did not take place within the prescribed ten days. Id. The present case is distinguishable in that the date of the hearing was not originally set for a date within the ten-day limitation, but rather was scheduled for a hearing twelve days from the filing of the petition.
J.B.H. v. State of Ga., supra, 139 Ga.App. at 202-203, 228 S.E.2d 189.
OCGA § 15-11-26(a) is the equivalent of a statutorily provided speedy trial demand which does not require a specific demand by the child. However, its protections can be waived if not properly raised. See Sanchez, supra. Furthermore, the trial court has discretion to grant a continuance of a hearing properly set for a date within ten days from the filing of the petition, see In re J.B., 183 Ga.App. 229(2), 358 S.E.2d 620 (1987), thus protecting both parties from participating in a hearing before they are properly prepared. Finally, if the case is transferred to the superior court within ten days of the petition being filed, the juvenile court rules no longer apply and the ten-day limitation need not be met. Therefore, the statute protects the interests of both the child and the State.
The statute 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...
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