R.D.F., In Interest of

Citation266 Ga. 294,466 S.E.2d 572
Decision Date29 January 1996
Docket NumberNo. S95G1035,S95G1035
PartiesIn the Interest of R.D.F., A Child.
CourtSupreme Court of Georgia

Certiorari to the Court of Appeals of Georgia--216 Ga.App. 563.

Lewis R. Slaton, Dist. Atty., Bradley J. Boyd, Carl P. Greenberg, Asst. Dist. Attys., Atlanta, for State.

Wilma E. Espy, Office Of The Public Defender, Atlanta, for defendant.

HUNSTEIN, Justice.

A delinquency petition was filed in Fulton County Juvenile Court on June 6, 1994 charging appellee R.D.F. with various drug offenses. Appellee was not in detention. The summons and notice served on appellee and his mother commanded them to appear at a June 29, 1994 hearing in order to "make defense" to the petition and to "show cause why [appellee] should not be dealt with according to the provisions of the law." Appellee and his mother were informed that even though the hearing might be continued, they were nonetheless ordered to remain in attendance until their discharge by the juvenile court upon disposition of the case.

No transcript of the June 29 hearing was included in the record on appeal. In the order entered the day of the hearing, the juvenile court judge noted that an "arraignment hearing" had been conducted; that appellee had denied the charges in the petition and requested legal representation; and that appellee qualified for such representation. The order reflected that the juvenile court judge had determined that the hearing should be continued "for good cause shown" and that a hearing was set for August 19, 1994. 1

Appellee moved to dismiss the petition on August 29, 1994 on the basis that "[n]o adjudicatory hearing was fixed in the above-styled case within the time limit set out in [OCGA s] 15-11-26(a)." The juvenile court granted appellee's motion and the Court of Appeals affirmed. In the Interest of R.D.F., 216 Ga.App. 563, 455 S.E.2d 77 (1995). We reverse.

1. OCGA § 15-11-26(a) provides:

After 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.

In construing OCGA § 15-11-26(a), the appellate courts have recognized that the hearing required by the statute is an adjudicatory hearing, not an arraignment hearing. In the Interest of L.A.E., 214 Ga.App. 268(1), 447 S.E.2d 627 (1994), rev'd on other grounds, 265 Ga. 698, 462 S.E.2d 148 (1995). OCGA § 15-11-26(a) mandates that the hearing date be "fixed" within the applicable statutory period. Sanchez v. Walker County Dept. of Family and Children Services, 237 Ga. 406, 408, 229 S.E.2d 66 (1976). However, this requirement can be waived, id. at 409, 229 S.E.2d 66; E.S. v. State of Georgia, 134 Ga.App. 724, 725(1), 215 S.E.2d 732 (1975) or continued for the securing of legal representation, OCGA § 15-11-30(b), or for reasons within the discretion of the juvenile court. In re J.B., 183 Ga.App. 229(2), 358 S.E.2d 620 (1987); Brown v. Fulton County Dept. of Family, etc., Services, 136 Ga.App. 308(1), 220 S.E.2d 790 (1975).

2. The State contends that the language in OCGA § 15-11-26(a) is directory, rather than mandatory, insofar as it applies to children who are not in detention, and that the holding to the contrary in Sanchez, supra, is distinguishable on the basis that Sanchez applies only to children in detention. We do not agree.

To arrive at its holding, Sanchez cited numerous authorities, including E.S., supra, in which it was recognized that

"[i]f the disposition [of a child] is to be meaningful to the offender, he must be able to connect it with the acts which gave rise to it. With a long period of time between the offense and disposition, the child may not recognize the vital causal connection between his act and his responsibility as a member of society for that act."

Id. at 725, 215 S.E.2d 732. We find that the goal of OCGA § 15-11-26(a) is to render a child's disposition meaningful by providing for prompt resolution of charges brought against a delinquent or unruly child and expeditious handling of matters involving a deprived child. Construing the language in OCGA § 15-11-26(a) to be mandatory, as this Court did in Sanchez, is consistent with this goal.

The rules of statutory construction require that we harmonize the two sentences in the same Code section. See generally Houston v. Lowes of Savannah, 235 Ga. 201, 203, 219 S.E.2d 115 (1975). It is apparent from a reading of the statute that the goal sought to be accomplished by the ten-day hearing requirement for detained children is the same goal for the 60-day hearing requirement for non-detained children. Virtually identical language was used by the Legislature and there is no indication of any intention to attach a different meaning to the same language used twice in the same section. Accordingly, we cannot agree with the State that the two sentences in OCGA § 15-11-26(a) are subject to differing construction, so as to render the language mandatory for detained children and directory as to non-detained children. Compare, e.g., Carpet Transport v. Pittman, 187 Ga.App. 463, 466(1), 370 S.E.2d 651 (1988). The State's arguments that the purposes of the juvenile code are not served by a mandatory application of OCGA § 15-11-26(a) are best directed to the General Assembly.

3. The State contends the Court of Appeals erred by holding that OCGA § 15-11-26(a) constitutes a speedy trial demand so that violation of its provisions results in dismissal with prejudice. We agree.

In stark contrast to OCGA §§ 17-7-170 and 17-7-171, there is no explicit language in OCGA § 15-11-26 which mandates that the failure to comply with the statutory time limits provided therein will result in an adjudication of the juvenile's non-delinquency by operation of law.

If the legislature had intended that a non-compliance with OCGA § [15-11-26(a) ] would result in the automatic acquittal of a defendant in a [delinquency] case, it could have expressly provided for the comparable remedy afforded for a non-compliance with OCGA § 17-7-170. The legislature did not so provide.

Butler v. State, 207 Ga.App. 824, 826, 429 S.E.2d 280 (1993). See also In the Interest of M.O.B., 190 Ga.App. 474, 475, 378 S.E.2d 898 (1989) (holding that unlike rulings on speedy trial motions under OCGA § 17-7-170, there is no right of direct appeal from rulings denying motion to dismiss for noncompliance with OCGA § 15-11-26). The failure to comply with OCGA § 15-11-26(a), like the failure to comply with OCGA §§ 15-11-19 and 15-11-21, results in dismissal of the petition without prejudice, 2 see Sanchez, supra at 411, 229 S.E.2d 66, and we disapprove any interpretation of Sanchez to the contrary. Cases holding that the dismissal is with prejudice are hereby overruled. See, e.g., In the Interest of L.A.E., supra at (1), 447 S.E.2d 627; In the Interest of M.D.C., 214 Ga.App. 59, 447 S.E.2d 143 (1994); R.A.S. v. State of Georgia, 156 Ga.App. 366, 274 S.E.2d 752 (1980); J.B.H. v. State of Ga., 139 Ga.App. 199(1), 228 S.E.2d 189 (1976).

4. Applying the law to the facts in this case, the summons and notice issued by the juvenile court in this case put appellee and his parent on notice that an adjudicatory hearing was set for June 29. See In the Interest of L.A.E., supra, at 265 Ga. 698, 462 S.E.2d 148, wherein an identical summons and notice was used 3 and an adjudicatory hearing was held. The June 29 hearing was held and was within the statutory period. OCGA § 15-11-26(a). However, although the hearing scheduled was an adjudicatory hearing, appellee contends the hearing actually conducted was not an adjudicatory hearing for purposes of OCGA § 15-11-26(a).

The record establishes that an adjudicatory hearing was scheduled and a hearing was held on the scheduled date; that an arraignment was conducted at the beginning of the hearing; that appellee then requested legal representation and was found eligible to receive same; and that a continuance was granted so appellee could secure counsel. See OCGA § 15-11-30(b). What might have ensued had the continuance not been granted cannot be ascertained on appeal because appellee did not include in the record before this Court a transcript of that hearing. Compare L.A.E., supra at 265 Ga. 698, 462 S.E.2d 148 (review of transcript of hearing revealed true nature of hearing conducted by juvenile court). In the absence of a transcript, there is only appellee's bare, unsupported contention that an adjudicatory hearing would not have been held even had the juvenile court not granted a continuance to appellee.

Although appellee points to the juvenile court's order, which reflects that an arraignment was conducted, the conducting of an arraignment is not inconsistent with an adjudicatory hearing. See Uniform Juvenile Court Rule 10.3, which contemplates that an arraignment proceeding may substitute as the "adjudicatory" hearing in those instances in which the child admits the charges. Furthermore, as demonstrated in L.A.E., supra at 265 Ga. 698, 462 S.E.2d 148, hearings conducted pursuant to the summons and notice in issue in this case can properly be expanded to include more matters other than adjudicatory proceedings.

As movant, appellee had the responsibility to present sufficient evidence in support of his motion to dismiss. See generally Stiles v. State, 264 Ga. 446(3), 448 S.E.2d 172 (1994). In the absence of a transcript, appellee has failed to establish that OCGA § 15-11-26(a) was violated. See Irvin v. Dept. of Human Resources, 159 Ga.App. 101(1), 282 S.E.2d 664 (1981). Therefore, dismissal of the delinquency petition was error.

Judgment reversed.

All the Justices concur, except FLETCHER, P.J., and SEARS, J., who concur in the judgment only, and CARLEY, J., who concurs...

To continue reading

Request your trial
28 cases
  • In re Thomas J.
    • United States
    • Maryland Court of Appeals
    • November 19, 2002
    ...be provided a forum in which to enjoy the basic rights of due process specifically granted in Gault). See generally, In re R.D.F., 266 Ga. 294, 301, 466 S.E.2d 572 (1996) (Carley J., concurring) (noting that Gault "required in appropriate situations the same constitutional standards apply t......
  • Thebaut v. Georgia Bd. of Dentistry, No. A98A1130
    • United States
    • Georgia Court of Appeals
    • November 10, 1998
    ...See State v. Henderson, 263 Ga. 508, 510, 436 S.E.2d 209 (1993) ("must" and "shall" are synonymous); see also In the Interest of R.D.F., 266 Ga. 294, 295, 466 S.E.2d 572 (1996) (OCGA § 15-11-26, which contains the word "shall," is construed to be mandatory); Ga. Subsequent Injury Trust Fund......
  • Quynn v. Hulsey
    • United States
    • Georgia Supreme Court
    • November 2, 2020
    ...49 (2016) ("[W]e presume that the General Assembly enacted the statute with reference to our decision in [ In the Interest of R. D. F. , 266 Ga. 294, 466 S.E.2d 572 (1996) ]); Roberts v. Cooper , 286 Ga. 657, 660, 691 S.E.2d 875 (2010) ("Certainly our legislature is presumed to enact statut......
  • Johnson v. Hauck
    • United States
    • Georgia Court of Appeals
    • March 1, 2018
    ...Dept. of Family etc. Svcs ., 237 Ga. 406, 411, 229 S.E.2d 66 (1976), disapproved of on other grounds, In Interest of R. D. F. , 266 Ga. 294, 296 (3), 466 S.E.2d 572 (1996) ; see In the Interest of J. M. B. , 296 Ga. App. at 789, 676 S.E.2d 9. In order to defend this stringently protected ri......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT