In the Interest of M. D.

503 S.E.2d 888, 233 Ga. App. 261, 98 Fulton County D. Rep. 2729, 1998 Ga. App. LEXIS 948
CourtCourt of Appeals of Georgia
DecidedJuly 2, 1998
DocketA98A1578
StatusPublished
Cited by6 cases

This text of 503 S.E.2d 888 (In the Interest of M. D.) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In the Interest of M. D., 503 S.E.2d 888, 233 Ga. App. 261, 98 Fulton County D. Rep. 2729, 1998 Ga. App. LEXIS 948 (Ga. Ct. App. 1998).

Opinion

Eldridge, Judge.

On December 15, 1997, Officer R. Hembree of the Clayton County Police Department was dispatched to Morrow Middle School upon a request by the school’s principal, who had received information about an incident involving appellant M. D., a 13-year-old student. After interviewing M. D., the victim, and other witnesses, the officer filed a petition in Clayton County Juvenile Court which alleged that M. D., while in possession of a gun, pushed, struck, and threatened a fellow student on December 12, 1997, when both students were on school grounds after a basketball game.

On February 9, 1998, the court held an adjudicatory hearing, during which several witnesses testified regarding the incident. Following the presentation of evidence and arguments, the juvenile court found that M. D. committed the offenses of carrying a weapon at a school function or on school property (OCGA § 16-11-127.1), simple battery (OCGA § 16-5-23), and terroristic threats and acts (OCGA § 16-11-37).

The court then immediately moved into the dispositional phase. However, the probation officer notified the court that he was not prepared to make a recommendation regarding disposition, explaining that the Clayton County Juvenile Court generally conducted dispositional hearings on Wednesdays. The court responded that “I don’t know what /all’s procedure is up here, but I’ll go forth with my procedure.”1 The defense made no request to present evidence, argument, or other matters regarding the best interest of the child. The court then issued its dispositional order without further inquiry or evidence. Such order required M. D. to serve in restrictive custody for two consecutive periods of 90 days at a Youth Development Center, to serve 60 hours of community service, to pay supervision fees, and to abide by a 6:00 p.m. curfew.

On February 18,1998, M. D. moved the court to reduce the order of 180 days of restrictive custody, based upon the court’s failure to conduct a dispositional hearing pursuant to OCGA § 15-11-33 (c); [262]*262M. D. also requested supersedeas bond. The court denied the motions. M. D. appeals. Held:

1. Without challenging the adjudication of delinquency, M. D. asserts that the court committed reversible error by failing to conduct a dispositional hearing, as mandated by OCGA § 15-11-33. We agree.

“OCGA § 15-11-33 (c) provides for a bifurcated procedure in a delinquency case. When the adjudicatory stage has been completed, the court must conduct a dispositional hearing.” In the Interest of C. W., 227 Ga. App. 763, 768 (490 SE2d 442) (1997). During such hearing, “[virtually any evidence that is material and relevant on the issue of disposition is admissible, because for purposes of making an appropriate disposition, the court needs to know as much about the child as possible.” D. C. A. v. State of Ga., 135 Ga. App. 234, 237 (217 SE2d 470) (1975). Thereafter, the court has the opportunity to “explore all available additional avenues, including psychiatric and sociological studies, which would enable [the court] to provide a solution for the youngster and his family aimed at making the child a secure law-abiding member of society.” Id. at 238. See also J. B. v. State of Ga., 139 Ga. App. 545, 547 (228 SE2d 712) (1976).

Upon motion of either party or the court’s own motion, a continuance may be granted to gather evidence for the dispositional hearing. OCGA § 15-11-33 (e). The probation officer’s protest that he was unprepared to proceed until the next Wednesday should have been treated as a motion for continuance. The adjudicatory hearing may be immediately followed by the dispositional hearing. See OCGA § 15-11-33 (b) and (c). However, for such bifurcated procedures to fulfill the intended purpose of each meaningfully, both parties must be on notice of the court’s intent to so proceed and to be prepared to proceed. To force either or both sides to proceed unprepared is to deny the dispositional hearing.

Thus, in this case, “the trial court held only one phase of the bifurcated procedure. The juvenile had a right to a dispositional hearing in which he could have presented evidence relevant to the issue of disposition. We find that the juvenile code requires both an adjudicatory and dispositional hearing. Accordingly, the trial judge erred in making a disposition in the case in the absence of a dispositional hearing. [In the Interest of J. E. H., 202 Ga. App. 29, 30 (413 SE2d 227) (1991).]” (Punctuation omitted; emphasis supplied.) In the Interest of C. W., supra at 768. See also OCGA § 15-11-33 (d). Further, “[e]rror based on the failure to hold it is neither harmless nor preserved only by objection.” In the Interest of C. W., supra at 768.

Therefore, we vacate the order of disposition and remand this case to the juvenile court for a dispositional hearing in accordance with OCGA § 15-11-33 (c) and (d), and a redetermination regarding [263]*263the disposition of M. D.’s case.

2. M. D. also challenges the disposition, asserting that it exceeds the maximum allowable penalties under OCGA § 15-11-35 (b). Since this issue may again be raised during the dispositional hearing on remand, we will address the issue on its merits.

(a) The juvenile court adjudicated M. D. delinquent based upon three allegations, including one designated felony, i.e., carrying or possessing a weapon in violation of OCGA § 16-11-127.1 (b). See OCGA § 15-11-37 (a) (2) (B) (iv). However, it is clear from the record that the court’s order of 180 days of restrictive custody was entered under the provisions of OCGA § 15-11-35 (b) and not under the designated felony provisions of OCGA § 15-11-37. This is further evidenced by the fact that the court did not comply with the provisions of OCGA § 15-11-37

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Bluebook (online)
503 S.E.2d 888, 233 Ga. App. 261, 98 Fulton County D. Rep. 2729, 1998 Ga. App. LEXIS 948, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-the-interest-of-m-d-gactapp-1998.