IN THE INTEREST OF M. D. C., a child.
A94A0262
Court of Appeals of Georgia
DECIDED JULY 15, 1994.
214 Ga. App. 59 | 447 SE2d 143
Decided July 15, 1994.
Alston & Bird, Robert L. Crewdson, Bovis, Kyle & Burch, John V. Burch, for appellants.
White, Smith, Howard & Ajax, Michael D. St. Amand, for appellee.
BLACKBURN, Judge.
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 schеduled 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. appеals 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
In Brown v. Fulton County Dept. of Family &c. Svcs., 136 Ga. App. 308 (1) (220 SE2d 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. We held that the grant of the continuance was proper and, as the original hearing date was schеduled for a time within ten days from
In J. B. H. v. State of Ga., 139 Ga. App. 199, 203 (228 SE2d 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 &c. Svcs., 146 Ga. App. 408, 409 (246 SE2d 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. In Irvin v. Dept. of Human Resources, 159 Ga. App. 101, 102 (282 SE2d 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 &c. Svcs., 237 Ga. 406, 408 (229 SE2d 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 SE2d 781) (1984), she wrotе, “I would not leave any room for the argument that ... so long as the juvenile court entered a date-setting order within 10 days, the statutory limitation would be satisfied. The intent of the statute is that the hearing be held within 10 days after the petition has been filed, if the child is in detention. Otherwise the court loses jurisdiction. Naturally, in order to give notice to all parties who must be assembled for that hearing, the court would have to, in advance of the hearing, fix a date. Thus it goes without saying that the fixing of the date must also be within that 10-day period. However, this is not to say that the requirement is rigid and that the hearing must in all cases be held as scheduled within that 10-day period. A continuance may be granted in the sound legal discretion of the court. Of course, the rescheduling cannot be arbitrary but must be for a good reason, as the court must keep in mind thе objective of holding the hearing quickly, within 10 days.” (Citations, punctuation, and footnote omitted.)
In several cases, we have stated “that
”In re Gault, 387 U. S. 1 (87 SC 1428, 18 LE2d 527) [(1967)] required that in appropriate situations the same constitutional standards apply to juveniles as to adults. In Barker v. Wingo, 407 U. S. 514 (92 SC 2182, 33 LE2d 101) [(1972)] the Supreme Court adopted a four-factor test for adjudging whether or not the constitutional right to a speedy trial hаs been violated. These four factors apply to adult criminal defendants in Georgia. See Sanders v. State, 132 Ga. App. 580, 582 (208 SE2d 597) [(1974)] and cits. We note, however, that in Barker v. Wingo, Mr. Justice Powell observed at page 523 that ‘The States, of course, are free to prescribe a reasonable period consistent with constitutional standards . . .’ Our interpretation of these words from the Barker decision is that where a legislative body has defined the right to speedy trial in terms of days, then thе time limits must be strictly complied with. . . . Accordingly, we hold that time limits established by the General Assembly in the Juvenile Court Code are jurisdictional and must be strictly adhered to.
“As Chief Justice Burger observed in Strunk v. United States, 412 U. S. 434 [(93 SC 2260, 37 LE2d 56) (1973)] the only available remedy for one denied his сonstitutional right to a speedy trial is dismissal. Accordingly, the juvenile court judge here erred in overruling the motion to dismiss.” J. B. H. v. State of Ga., supra at 202-203.
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 sevеral months in the future. It is
Judgment reversed. Pope, P. J., Beasley, P. J., Andrews, Johnson, Smith, JJ., and Senior Appellate Judgе Harold R. Banke concur. McMurray, P. J., and Birdsong, P. J., dissent.
BIRDSONG, Presiding Judge, dissenting.
A decision should be overruled to the extent that it states the wrong law, even if the result was appropriate under the facts. We may find facts to mitigate bаd law, but if the statement of the law is never overruled, the courts must use all sorts of contortions to get around it. It is not enough to say a wrong statement is “incomplete,” or that a case can be distinguished frоm it, for it will cause trouble when its language is quoted out of context. This is inevitable. When due process rights are at stake, the danger of mistake is too great to shrug off our responsibility to correct the lаw.
The only reason the trial court held these proceedings met the requirements of
This clarification was not enough, nor is the “justifying” by the majority. As long as we have cases, not overruled, which say the statute “‘require(s) only that a hearing date be set within ten days‘” (see P. L. A., supra at 822 (physical precedent) citing J. B. v. State, 171 Ga. App. 373, 375 (319 SE2d 465)), the courts below will rеmain confused, with the result we see here: a delinquency petition must be dismissed because the trial court “set” within ten days a hearing date which was not to be “held” within ten days. This is a serious problem which we should not overlook or excuse merely because the cases which caused it can be distinguished.
This court should overrule those cases which state wrong principles of law; the statements cannot be justified as “incomplete” where they give the wrong direction, as acknowledged in the special concurrence in P. L. A., and as proved in this case. The correct statement of law is that the court must set a hearing to be held within ten days of the filing of the petition, but if valid continuances have been granted, or no objection made, dismissal of the petition is not necessarily required. Any other statement of law gives the wrong direction to the trial court and results in confusion, and ultimately, delinquency petitions will be dismissed.
I respectfully dissent.
I am authorized to state that Presiding Judge McMurray joins in this dissent.
DECIDED JULY 15, 1994.
Fuller & McFarland, Thomas R. McFarland, Cecilia M. Cooper, for appellant.
John R. Parks, District Attorney, Henry O. Jones III, Assistant District Attorney, for appellee.