FIRST DIVISION
BARNES, P. J.,
MCMILLIAN and REESE, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
May 15, 2018
In the Court of Appeals of Georgia
A18A0364. IN THE INTEREST OF C. W., a child.
MCMILLIAN, Judge.
This case concerns the timeliness of an oral motion to dismiss two counts of
a delinquency petition on the basis that the victim of the alleged acts of delinquency
was not named. We find that under the facts of this case the motion was not timely
or properly made and accordingly reverse the juvenile court’s order dismissing the
challenged counts.
The record shows that C. W. was arrested on January 25, 2017, and placed in
detention, which was continued following a hearing a few days later. A delinquency
petition was filed on January 31, 2017, alleging delinquent acts which, had C. W.
been an adult, would constitute the crimes of attempted aggravated sodomy (Count
1); attempted sodomy (Count 2); sexual battery (Count 3); and two counts of simple
battery (Counts 4 & 5); Counts 1 and 2 referred only to the “victim,” while the
remaining counts referred to the victim by name. An amended delinquency petition
was filed on February 1, 2017, adding an additional count of simple battery against
a different victim, who was referred to by name (Count 6).
An adjudicatory hearing was held on February 3, 2017. After the witnesses
were sworn but before the State could call its first witness, C. W.’s counsel made a
motion to dismiss Counts 1 and 2 of the delinquency petition, arguing that those
counts were fatally defective because they did not name the victim of the alleged acts
of delinquency, violating the juvenile’s due process rights. The State opposed the
motion, and the juvenile court took the matter under advisement and continued the
hearing. The juvenile court subsequently granted the motion to dismiss, finding that
C. W.’s due process rights were violated because Counts 1 and 2 failed to provide
sufficient information for him to prepare his defense. The juvenile court also rejected
the State’s argument that the motion should be denied because it was not in writing
and untimely. Pursuant to OCGA § 5-7-1 (a), the State then filed this appeal.1
1
We note also that although other counts remained pending below, the State
was not required to file an application for interlocutory review. See OCGA §§ 5-7-1,
5-7-2 (b) (2).
2
The resolution of this appeal requires us to answer two questions – (1) whether
the delinquency petition was subject to challenge because the name of the victim was
not disclosed, and (2) whether the juvenile’s challenge to the petition in the form of
a motion to dismiss was timely and properly made. We agree with the juvenile court
that the delinquency petition was subject to dismissal because it did not disclose the
name of the victim, but find that the juvenile’s oral motion to dismiss was not timely
or properly brought.
There is no question that a juvenile in a delinquency proceeding is entitled to
“scrupulous adherence to due process[.]” C. L. T. v. State, 157 Ga. App. 180, 180 (1)
(276 SE2d 862) (1981). See also OCGA § 15-11-470 (“The purpose of this article
is:... (2) To accord due process of law to each child who is accused of having
committed a delinquent act[.]”) Thus, while a delinquency petition does not have to
be drafted with the “exactitude” of a criminal accusation or indictment, it must satisfy
due process. T. L. T. v. State, 133 Ga. App. 895, 897 (1) (212 SE2d 650) (1975).
To comport with due process, the language of a delinquency petition must pass
two tests “(1) it must contain sufficient factual details to inform the juvenile of the
nature of the offense; and (2) it must provide data adequate to enable the accused to
prepare his defense.” T. L. T., 133 Ga. App. at 897 (1). See also In re Gault, 387 U.S.
3
1, 33 III (87 SCt 1428, 18 LE2d 527) (1967) (the delinquency petition must “set forth
the alleged misconduct with particularity” to satisfy due process); OCGA § 15-11-522
(The delinquency petition must set forth “plainly and with particularity: (1) the facts
which bring a child within the jurisdiction of the court[.]”); In the Interest of C. H.,
306 Ga. App. 834, 837 (4) (703 SE2d 407) (2010) (trial court erred in denying special
demurrer when petition did not allege misconduct with particularity); cf. C. L. T., 157
Ga. App. at 180 (1) (delinquency petition sufficient to charge simple assault when it
alleged altercation between juvenile and his mother and father).
Our law is settled that an allegation that the accused has committed a crime
against a particular person that does not contain the name of the victim is considered
deficient and subject to challenge. E.g., State v. Grube, 293 Ga. 257, 260 (2) (744
SE2d 1) (2013); Dennard v. State, 243 Ga. App. 868 (534 SE2d 182) (2000). But
contrary to C. W.’s argument on appeal, in the context of criminal adult proceedings,
this type of challenge is considered a challenge to the form, not the substance, of the
indictment because it is a demand for more information or specificity so that the
accused can properly prepare his or her defense, not a challenge that the indictment
fails because it is lacking an essential element of the charged offense. Accordingly,
it is in the nature of a special, rather than a general demurrer. Sellers v. State, 263 Ga.
4
App. 144, 145 (587 SE2d 276) (2003); Kimbrough v. State, 300 Ga. 878, 880 (2) (799
SE2d 229) (2017) (“A special demurrer,... challenges the sufficiency of the form of
the indictment,... [or claims] that the accused is entitled to more information.”).
(citation and punctuation omitted; emphasis in original.) And while a general
demurrer may be made at any time, a special demurrer or motion seeking this type of
information may be waived if not timely made and in writing. See Palmer v. State,
282 Ga. 466 (651 SE2d 86) (2007) (discussing time limits for filing a special
demurrer); see OCGA §§§ 17-7-110, 17-7-111, 17-7-113 (setting out time limits and
writing requirements for special demurrers in the context of adult criminal
proceedings).
The question then is how a juvenile must challenge the sufficiency of a
delinquency petition on the basis that the identity of the victim of a crime against a
person was not disclosed. Although the Juvenile Code does not set out a specific
procedure for filing a motion in the nature of a special demurrer, Uniform Juvenile
Court Rule 7.9 sets out the time for filing pretrial motions as follows: “All other
pretrial motions2 must be made in writing and filed not later than three (3) days,
2
The Uniform Juvenile Court Rules separately address discovery motions and
motions in the nature of responsive pleadings. See Uniform Juvenile Court Rules 6.9
and 7.4.
5
excluding weekends and holidays, before the adjudicatory hearing unless otherwise
permitted by the court.” Further, the Uniform Juvenile Court Rules contemplate the
need to amend pleadings before the adjudicatory hearing, and specifically provide
that “[u]pon the motion of any party,” the juvenile court will hold a pretrial
conference to consider “[t]he necessity or desirability of amendments to the
pleadings.” Uniform Juvenile Court Rule 7.5. Accordingly, the motion to dismiss in
this case, which was made orally and after the first witness was sworn at the
adjudicatory hearing,3 was untimely and not in the proper form.
Lastly, although we note that the strict time limitations for holding the
adjudicatory hearing might pose difficulties in meeting these requirements in some
circumstances,4 potentially raising due process concerns, none of those circumstances
are present here. Although the petition was amended to add an additional count
several days before the hearing, the victim was named in that count and C. W. did not
move to dismiss the added count. Further, the name of the victim of Counts 1 and 2
3
OCGA § 15-11-480 (a) provides that jeopardy attaches in a juvenile
proceeding when the first witness is sworn at the adjudicatory hearing.
4
OCGA § 15-11-582 requires an adjudicatory hearing to be held no later than
ten days after the filing of the delinquency petition if the child is in detention, and no
later than sixty days after the filing of the petition if the child is not in detention.
6
was disclosed at the detention hearing on January 27, 2017. And lastly, it appears that
C. W.’s attorney intentionally waited until jeopardy had attached and the State could
not amend the delinquency petition5 before moving to dismiss.6 Under these
circumstances, C. W. waived his right to be adjudicated on a delinquency petition
“perfect in form,” and the juvenile court’s order dismissing Counts 1 and 2 of the
petition must be reversed.
Judgment reversed. Barnes, P. J., and Reese, J., concur.
5
After jeopardy attaches, a petition alleging delinquency may not be amended
to include new charges of delinquency. OCGA § 15-11-523 (c).
6
Immediately before moving to dismiss, C. W.’s attorney stated “[N]ow that
the first witness has been sworn, I do have a motion to make before the Court.”
7