dissenting.
I respectfully dissent because the record does not show an abuse of the court’s discretion, “a discretion clearly mandated to be used by OCGA § 15-11-39 (a) (3).” D. T. R. v. State of Ga., 174 Ga. App. 695, 697 (331 SE2d 70) (1985). As stated in that opinion, the code section provides for “the power of a juvenile court to transfer [a] juvenile to the superior court for treatment as an adult.” Id. On appeal, our role is limited. “Determinations of a juvenile court made on an exercise of discretion, if based upon evidence, will not be controlled by this court. [Cits.]” In the Interest of L. L., 165 Ga. App. 49, 50 (299 SE2d 53) (1983). This was repeated by the Supreme Court in In re E. W., 256 Ga. 681, 683 (353 SE2d 175) (1987) as the appropriate approach, and it stated firmly: “The function of the appellate court is limited to ascertaining whether there was some evidence to support the juvenile court’s determination.”
Here there is competent evidence to support the court’s finding that “there are reasonable grounds to believe that [S. P.] is not committable to an institution for the mentally retarded or the mentally ill,” and to justify the juvenile court’s conclusion that the juvenile system is ineffective to deal with him further.
There is no evidence or contention whatsoever that S. P. is mentally retarded. With respect to committability to an institution for the mentally ill, the record shows the following. S. P. would be 17 within a month of the hearing. (See OCGA § 15-11-2 (2).) He was arrested after the sheriff’s office was advised by a confidential informant that drug sales were occurring and they stopped a designated car in which S. P. was a passenger; he was in possession of crack cocaine. When they got to the jail, a bag containing a cocaine tester and approximately 14 grams of cocaine was found behind the back seat, where S. P. had been seated. A motel room rented in his name contained an automatic pistol.
There was also evidence from his juvenile court service worker that he had been on probation for simple battery the year before, that he was subsequently committed to DHR for obscene language and terroristic threats involving the high school principal, that he escaped several times from various authorities, once recently when he was being taken to be tested for a sexually transmitted infection. The last *832time he escaped was after the court service worker had been notified that S. P. would be released back to his custody from Georgia Regional Hospital, as being in no further need of its services and treatment. He had been taken there two days earlier after an apparent suicide attempt at the youth development center where he was being detained pending the cocaine charge. He was apprehended in New Jersey when police were called to what was described as a domestic quarrel and it was learned he was a fugitive.
Decided January 13, 1989. Sarah M. Tipton-Downie, for appellant. Richard A. Malone, District Attorney, for appellee.In view of this history, and considering especially the nature of the delinquent act charged and the fact of intended release from the mental health hospital after a brief stay, as these relate to the question of committability to an institution for the mentally ill, there is at least some evidence to support the finding of the juvenile court. Its order of transfer should be affirmed, upon the authority of the above-cited code and cases.