In the Interest of L. A. E.

447 S.E.2d 627, 214 Ga. App. 268, 1994 Ga. App. LEXIS 874

• Court: Court of Appeals of Georgia
• Decided: June 22, 1994
• Docket: A94A0409
• Status: Published

Opinions

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 SE2d 313) (1987); see also J. T. G. v. State of Ga., 141 Ga. App. 184, 185 (233 SE2d 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, 442 (1) (439 SE2d 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 SE2d 620) (1987); Johnson v. State, supra at 169 (2). 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 SE2d 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 &c. Svcs., 146 Ga. App. 408, 409 (1) (246 SE2d 426) (1978); J. T. G. v. State of Ga., supra at 185. 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 SE2d 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, P. J., Birdsong, P. J., Andrews, Smith, JJ., and Senior Appellate Judge Harold R. Banke concur. Blackburn, J., concurs specially. Pope, C. J., and Beasley, P. J., dissent.

1 The premise of the dissent is that “[t]he hearing that was set ‘not. . . later than ten days,’ as required by OCGA § 15-11-26 (a), was the adjudicatory hearing.” This premise is contrary to the evidence in the record, which shows that the hearing scheduled within ten days of the filing of the petition was an arraignment. At the hearing held on March 30, the judge, the prosecutor and the juvenile’s attorney all refer to the hearing as the arraignment; none of them refer to it as the adjudicatory hearing. In the order granting the state’s motion for a continuance, the judge wrote that the case “came on for a[n] Arraignment hearing on March 30, 1993.” Moreover, a review of the transcript of the hearing reveals that the court and the parties did not intend to reach the merits of the case at that time.