In the Interest of J.W., a Child

THIRD DIVISION
DOYLE, P. J.,
REESE, J., and SENIOR APPELLATE JUDGE PHIPPS

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.
https://www.gaappeals.us/rules

April 8, 2022

In the Court of Appeals of Georgia
A22A0311. IN THE INTEREST OF J. W., a child.

PHIPPS, Senior Appellate Judge.

J. W. appeals from a juvenile court order (a) adjudicating him delinquent for

violating the conditions of his probation and (b) committing him to the custody of the

Department of Juvenile Justice (“DJJ”). He contends that the juvenile court was not

authorized to commit him to DJJ custody as a disposition for the delinquent act of

violation of probation. For the reasons discussed below, we agree, vacate the juvenile

court’s dispositional order, and remand the case for entry of a new dispositional order

consistent with this opinion.

Although J. W.’s prior adjudications are not included in the appellate record,

the facts in this case are not in dispute. On January 23, 2020, the juvenile court

adjudicated J. W. delinquent for acts which, if committed by an adult, would have
constituted terroristic threats and two controlled substance offenses. Two of the

terroristic threats adjudications were felony charges. Although the juvenile court was

authorized to place J. W. in restrictive custody because he committed an act of

delinquency designated as a felony, see OCGA § 15-11-601 (a) (10) (A), the juvenile

court instead placed him on probation.

J. W. purportedly violated his probation a number of times by intentionally

leaving the custody of the Fulton County Department of Family & Children Services

(“DFCS”). On January 25, 2021, the juvenile court placed J. W. under a new order

of probation for 24 months.1 The order required J. W. to obey the lawful commands

of his legal custodian and cooperate with his probation officer. J. W. left DFCS

custody the following day, he thereafter failed to recharge his ankle monitor, and his

whereabouts were unknown until mid-February.

On January 27, 2021, J. W.’s probation officer filed a complaint in the juvenile

court alleging that J. W. had committed the delinquent act of “Violation of

Probation.” The complaint cited OCGA § 15-11-2 (19) (B), which defines a

1
The facts, documents, and/or hearings leading to or surrounding this new
probation order are not included in the record on appeal. However, the parties do not
raise any argument regarding the January 25, 2021 order on appeal, and we therefore
express no opinion on the propriety of that order.

2
“[d]elinquent act” to include “[t]he act of disobeying the terms of supervision

contained in a court order which has been directed to a child who has been

adjudicated to have committed a delinquent act.” The complaint did not include any

indication that the delinquent act was classified as a misdemeanor or felony. The

State subsequently filed a delinquency petition against J. W. containing the same

allegations as the complaint. Specifically, the petition and its attachment charged J.

W. with “the offense of VIOLATION OF PROBATION, O.C.G.A. 15-11-2 (19) (B),”

for (a) leaving the presence of his DFCS behavioral aide on January 26, 2021 and

remaining absent until he was located on February 14, 2021, (b) failing to recharge

his ankle monitor during that time, and (3) failing to update his probation officer

regarding his whereabouts.

At the hearing on the petition, J. W. admitted that he left his behavioral aide

without permission on January 26, 2021, and remained absent until he was found on

February 14, 2021. He further admitted that he failed to recharge his ankle monitor

and update his probation officer regarding his whereabouts. Both J. W.’s probation

officer and the State recommended commitment to DJJ custody. J. W.’s attorney,

however, repeatedly argued at the hearing that the juvenile court lacked the authority

to commit J. W. to DJJ custody for a violation of probation. The juvenile court

3
disagreed, stating that a violation of probation authorized the court to “send [J. W.]

to DJJ for the remainder” of his original sentence. On February 26, 2021, the juvenile

court adjudicated J. W. delinquent for “the offense of DELINQUENCY VIOLATION

OF PROBATION” and committed him to DJJ custody “for the remainder of his

probation expiring January 24, 2023.”

J. W. filed a motion for reconsideration, asserting once again that his

commitment to DJJ custody was not a lawful disposition for a delinquency

adjudication of violation of probation. The State thereafter filed a motion to revoke

J. W.’s probation under OCGA § 15-11-608.2 At the hearing on the motions, the

juvenile court judge stated, “if he’s on probation for a felony and he violates it, then

I believe I have the discretion to re-sentence him and continue – and commit him to

DJJ.” The juvenile court subsequently denied J. W.’s motion for reconsideration and

dismissed the State’s motion for revocation of probation. J. W. appeals the juvenile

court’s February 26, 2021 order finding him delinquent for a violation of probation

and committing him to DJJ custody until January 24, 2023.

In his sole enumeration of error, J. W. argues that the juvenile court unlawfully

committed him to DJJ custody after finding him delinquent solely for violating his

2
The motion for revocation of probation is not included in the appellate record.

4
probation. Specifically, J. W. asserts that because the State chose to charge him with

a new delinquent offense pursuant to OCGA § 15-11-2 (19) (B) rather than seek a

probation revocation under OCGA § 15-11-608, the State was required to

demonstrate that he committed an offense under OCGA § 15-11-601 (a) (10) to

commit him to DJJ custody, see OCGA § 15-11-601 (a) (11), and a violation of

probation does not satisfy that requirement. This challenge to the juvenile court’s

order involves a question of law, which we review de novo, and we review any

factual findings supporting the juvenile court’s order for clear error. In the Interest

of R. M., 329 Ga. App. 725, 726 (766 SE2d 126) (2014). We agree with J. W. that the

trial court’s disposition committing him to DJJ custody for a violation of probation

is improper given the circumstances of this case.

If a juvenile is adjudicated delinquent, placed on probation, and subsequently

violates his probation, the State is afforded two alternative procedural avenues for

addressing the violation of probation: (1) it may file a motion to revoke probation

under OCGA § 15-11-608; or (2) it may file a new delinquency petition alleging the

probation violation as a delinquent act pursuant to OCGA § 15-11-2 (19) (B).3 In the

3
Georgia’s Juvenile Code was revised, effective January 1, 2014, and the new
Code applies to all juvenile proceedings commenced on or after that date, which
includes the present case. See Ga. L. 2013, pp. 294, 514, § 5-1. However, the new

5
Interest of J. M. A., 340 Ga. App. 155, 158-159 (1) (796 SE2d 773) (2017); In the

Interest of H. J. C., 331 Ga. App. 506, 509-510 (2) (771 SE2d 184) (2015). The

method chosen by the State determines the punishment that may be imposed by the

juvenile court.

1. Motion to revoke probation. “An order granting probation to a child

adjudicated for a delinquent act may be revoked on the ground that the conditions of

probation have been violated.” OCGA § 15-11-608 (a). According to the statute,

“[a]ny violation of a condition of probation may be reported to the prosecuting

attorney who may file a motion in the court for revocation of probation. A motion for

revocation of probation shall contain specific factual allegations constituting each

violation of a condition of probation.” OCGA § 15-11-608 (b). “If the court finds,

beyond a reasonable doubt, that a child violated the terms and conditions of

probation, the court may: (1) [e]xtend probation; (2) [i]mpose additional conditions

Juvenile Code adopted many provisions of the former Code, and cases construing
prior versions of the Code are relevant to the extent that the provisions have been
adopted in the new Code.

6
of probation; or (3) [m]ake any disposition that could have been made at the time

probation was imposed.” OCGA § 15-11-608 (f).4

A probation revocation in a juvenile court case is not a new proceeding.

Although revocation results in a new dispositional order, that order “relates to the

original delinquent act. . . . [T]he new order of disposition is a sanction for the

original offense for which the juvenile was adjudicated delinquent.” In the Interest

of N. M., 316 Ga. App. 649, 654 (2) (730 SE2d 127) (2012) (decided under former

OCGA § 15-11-40 (b)). Following a probation revocation, the juvenile court may

impose the sentence that could have originally been imposed upon the juvenile in lieu

of probation, such as confinement. Id. at 651 (1), 652 (2). And “[d]isobeying the

4
The applicable probation revocation statute in this case is OCGA § 15-11-
608. However, in light of the similarity of the statutory provisions in pre-2000 Code
Section 15-11-42 and pre-2014 Code Section 15-11-40, which were succeeded by
provisions in OCGA § 15-11-608, cases decided under those former Code sections
are relevant and instructive. See former Code Ann. § 24A-2801 (b) (Ga. L. 1971, pp.
709, 739), redesignated as pre-2000 OCGA § 15-11-42 (b), and subsequently
redesignated as OCGA § 15-11-40 (b) (2000) (Ga. L. 2000, pp. 20, 54, § 1) (“An
order granting probation to a child found to be delinquent or unruly may be revoked
on the ground that the conditions of probation have not been observed.”); see also
former Code Ann. § 24A-2801 (c) (Ga. L. 1971, pp. 709, 740), redesignated as pre-
2000 OCGA § 15-11-42 (c), and subsequently redesignated as OCGA § 15-11-40 (c)
(2000) (Ga. L. 2000, pp. 20, 54, § 1) (“Any party to the proceeding, the probation
officer, or any other person having supervision or legal custody of or an interest in
the child may petition the court for [probation revocation, and t]he petition shall set
forth in clear and concise language the grounds upon which the relief is requested.”).

7
terms of probation is a delinquent act,” see id. at 651 (1); see also OCGA § 15-11-2

(19) (B) (defining a “[d]elinquent act” as “[t]he act of disobeying the terms of

supervision contained in a court order which has been directed to a child who has

been adjudicated to have committed a delinquent act”), for which a juvenile’s

probation may be revoked. OCGA § 15-11-608 (a) (“An order granting probation to

a child adjudicated for a delinquent act may be revoked on the ground that the

conditions of probation have been violated.”).

However, in order to seek a probation revocation, the State must petition for

revocation under the appropriate statute authorizing the juvenile court to revoke a

child’s probation; “[a] delinquency petition alleging a probation violation is not

sufficient to revoke a juvenile’s probation imposed for his previous adjudication of

delinquency.” In the Interest of R. M., 329 Ga. App. at 727 (1); accord In the Interest

of N. M., 316 Ga. App. at 653 (2). “[D]ue process requires that before a juvenile court

may revoke an order granting probation, a petition must be filed requesting such

relief.” In the Interest of C. H., 319 Ga. App. 373, 375 (735 SE2d 291) (2012)

(“juvenile court [cannot] impose a period of confinement concerning the delinquent

act of ‘violation of probation’” where the State filed a delinquency petition under

former OCGA § 15-11-65 (a) rather than a petition seeking probation revocation

8
under former OCGA § 15-11-40) (citation and punctuation omitted); accord In the

Interest of B. C., 169 Ga. App. 200, 201-202 (311 SE2d 857) (1983) (a petition to

revoke a juvenile’s probation – rather than a petition of delinquency – must be filed

before a juvenile court is authorized to revoke probation and order disposition based

on the juvenile’s prior adjudication of delinquency) (decided under former OCGA §

15-11-42).

It is clear based on the appellate record that the juvenile court treated this case

as a probation revocation. The court stated during the initial hearing that a violation

of probation authorized the court to “send [J. W.] to DJJ for the remainder” of his

original sentence. The court then entered a disposition adjudicating J. W. delinquent

for violating his probation but committing him to DJJ custody “for the remainder of

his probation expiring January 24, 2023.” Subsequently, during the post-disposition

motions hearing, the juvenile court stated, “if he’s on probation for a felony and he

violates it, then I believe I have the discretion to re-sentence him and continue – and

commit him to DJJ.”

The record, on its face, however, demonstrates that the State filed a new

delinquency petition under OCGA § 15-11-2 (19) (B) to address J. W.’s probation

violations rather than a motion for revocation of probation under OCGA § 15-11-608

9
(b). Although the State’s attorney, in a single instance, refers to the adjudication

hearing as a “revocation,” the word “revoke” does not appear a single time in the

appellate record (before the hearing on J. W.’s motion for reconsideration), neither

the complaint nor the petition reference OCGA § 15-11-608, and the word

“revocation” does not appear until March 9, 2021, when the juvenile court denied the

motion for revocation of probation filed by the State in response to J. W.’s motion for

reconsideration. Because the State did not file a motion to revoke J. W.’s probation,

the juvenile court erred when it treated the dispositional hearing as a probation

revocation proceeding, concluded it was authorized to revoke J. W.’s probation, and

“commit[ted] him to DJJ for the rest of [his original] sentence.” See In the Interest of

C. H., 319 Ga. App. at 375 (“[T]he [S]tate did not file a petition for probation

revocation, and the juvenile court was not allowed to impose a period of confinement

concerning the delinquent act of ‘violation of probation’ by treating the dispositional

hearing as a probation revocation proceeding.”); In the Interest of T. F., 314 Ga. App.

606, 608 (1) (724 SE2d 892) (2012) (finding the State did not file a petition for

revocation where the complaint indicated it was for a “violation of probation,” did not

mention probation might be revoked, and did not reference the probation revocation

statute) (decided under former OCGA § 15-11-40 (b)); accord In the Interest of B. C.,

10
169 Ga. App. at 201-202 (court erred in revoking juvenile’s probation absent a

petition for revocation).

2. New delinquency petition. In an attempt to circumvent the juvenile court’s

mistaken belief that it could revoke J. W.’s probation absent a petition for revocation,

the State argues in its appellate brief, without citing a single case to support its

position, that the juvenile court’s disposition committing J. W. to DJJ custody

nonetheless was proper. We therefore turn to the second method by which the State

may address a violation of probation in juvenile proceedings: filing a new

delinquency petition alleging the probation violation as a delinquent act pursuant to

OCGA § 15-11-2 (19) (B). It is clear from the appellate record that this was the

method by which the State chose to proceed in this case.

The State does not dispute that if it files a new delinquency petition alleging

the probation violation as a delinquent act pursuant to OCGA § 15-11-2 (19) (B), the

juvenile court must, as with any dispositional order, comply with the disposition

requirements delineated in OCGA § 15-11-601. Under that statute, a juvenile may be

committed to DJJ custody pursuant to OCGA § 15-11-601 (a) (11) “only if such child

was adjudicated for a delinquent act involving” either

(A) [a]n offense that would be a felony if committed by an adult; or

11
 (B) [a]n offense that would be a misdemeanor if committed by an adult
and such child has had at least one prior adjudication for an offense that
would be a felony if committed by an adult and at least three other prior
adjudications for a delinquent act as defined in subparagraph (A) of
paragraph (19) of Code Section 15-11-2.

OCGA § 15-11-601 (a) (10), (11). OCGA § 15-11-2 (19) (A), in turn, defines the

applicable “[d]elinquent act” as “[a]n act committed by a child designated a crime by

the laws of this state, or by the laws of another state if the act occurred in that state,

under federal laws, or by local ordinance, and the act is not an offense applicable only

to a child or a juvenile traffic offense.”

At the outset, we note that the State does not assert in its appellate brief that the

delinquent act of “violation of probation” itself constitutes an act which, if committed

by an adult, would be punishable either as a felony or a misdemeanor. In fact, OCGA

§ 15-11-601 (a) (10) does not reference OCGA § 15-11-2 (19) (B), defining a

“[d]elinquent act” as “[t]he act of disobeying the terms of supervision contained in

a court order which has been directed to a child who has been adjudicated to have

committed a delinquent act,” or OCGA § 15-11-2 (19) (C), defining a “[d]elinquent

act” as including “[f]ailing to appear as required by a citation issued for an act that

would be a crime if committed by an adult.” We, therefore, express no opinion on that

12
issue. Instead, we turn to the State’s assertion that the juvenile court’s disposition

committing J. W. to DJJ custody was appropriate under OCGA § 15-11-601 (a) (10)

(A) because J. W. pled guilty to an act that, if committed by an adult, would constitute

the felony offense of escape under OCGA § 16-10-52 (a) (1) & (b) (1).5

Under OCGA § 16-10-52 (a) (1), a person commits the offense of escape when

he “[h]aving been convicted of a felony or misdemeanor or of the violation of a

municipal ordinance, intentionally escapes from lawful custody or from any place of

lawful confinement[.]” And OCGA § 16-10-52 (b) (1) provides that a person who is

convicted of the offense of escape after being convicted of a felony “shall be

punished by imprisonment for not less than one nor more than ten years,” constituting

a felony offense. See OCGA § 16-1-3 (5) (a felony offense is one that is punishable

by imprisonment for “more than 12 months”); OCGA § 17-10-3 (a) (1) (the maximum

term of incarceration for a misdemeanor is a “term not to exceed 12 months”).

According to the State, because J. W. admitted leaving the lawful custody of DFCS

the day after his new probation order – requiring him to remain in DFCS custody –

5
The State acknowledges in its appellate brief that although OCGA § 16-10-52
(a) (3) specifically contemplates the offense of escape committed by a juvenile,
OCGA § 15-11-601 (a) (10) mandates that the relevant inquiry is to evaluate the
offense as if J. W. were an adult, rendering subsection (a) (1) of OCGA § 16-10-52
the relevant portion of the statute.

13
took effect in January 2021, he committed an act which, if committed by an adult,

would constitute a new felony offense. The State contends that because J. W.

admitted that he committed an act “involving” the felony offense of escape, and

because OCGA § 15-11-601 (a) (10) and (11) provide that a juvenile may be

committed to DJJ custody if adjudicated for a delinquent act “involving” an offense

that would be a felony if committed by an adult, “the fact that [J. W.’s] proceedings

were styled as violations of probation is of no moment.” We disagree.

Pretermitting whether the facts admitted by J. W. would constitute the offense

of felony escape, it is well settled that due process is required in juvenile delinquency

proceedings. See In the Interest of A. T., 246 Ga. App. 30, 31 (539 SE2d 540) (2000);

D. P. v. State, 129 Ga. App. 680, 682-683 (2) (200 SE2d 499) (1973). “To satisfy due

process, a delinquency petition must contain sufficient factual details to inform the

juvenile of the nature of the offense and must provide data adequate to enable the

accused to prepare his defense.” In the Interest of A. T., 246 Ga. App. at 31. In that

regard, a petition alleging delinquency, in addition to other required items, “shall set

14
forth plainly and with particularity . . . [i]f a child is being charged with a class A

designated felony act or class B designated felony act.”6 OCGA § 15-11-522 (5).

Notice, to comply with due process requirements, must be given
sufficiently in advance of scheduled court proceedings so that
reasonable opportunity to prepare will be afforded, and it must “Set forth
the alleged misconduct with particularity” . . . [.] Due process of law
requires notice of the sort we have described – that is, notice which
would be deemed constitutionally adequate in a civil or criminal
proceeding. It does not allow a hearing to be held in which a youth’s
freedom and his parents’ right to his custody are at stake without giving
them timely notice, in advance of the hearing, of the specific issues that
they must meet.

D. P., 129 Ga. App. at 682 (2) (quoting In re Gault, 387 U. S. 1, 33-34 (III) (87 SCt

1428, 18 LE2d 527) (1967). Compare In the Interest of A. T., 246 Ga. App. at 31-32

(petition alleging that juvenile “had committed the felony offense of possession of a

controlled substance with intent to distribute in violation of OCGA § 16-13-30,” and

further alleging the specific facts regarding when and where the juvenile had been

6
“Class A designated felony act[s]” and “Class B designated felony act[s]” are
defined in OCGA § 15-11-2 (12) and (13). OCGA § 15-11-2 (12) (F) includes the
following as a Class A designated felony act: “Escape in violation of Code Section
16-10-52, if such child has previously been adjudicated to have committed a class A
designated felony act or class B designated felony act.”

15
found and the number of bags of marijuana in his possession, satisfied due process

because it informed the juvenile “of the nature of the offense with which he was

charged,” even though it did not specifically inform him that he could be sentenced

to restrictive custody), with D. P., 129 Ga. App. at 682-683 (2) (due process violated

where juvenile had no notice that the charge upon which his delinquency might be

based would be changed from burglary to receiving stolen goods).

Here, J. W. was never put on notice that he was being charged with the felony

offense of escape or that by admitting that he violated the terms of his probation he

was admitting to committing acts constituting a new felony offense. In fact, neither

the word “escape” nor the escape statute appear in the appellate record. And neither

the State’s complaint, nor its petition for delinquency and attachment “set forth

plainly and with particularity” that J. W. was being charged “with a class A

designated felony act or class B designated felony act” as required by statute. OCGA

§ 15-11-522 (5). The State’s argument that the juvenile court was authorized to

commit J. W. to DJJ custody based on J. W.’s commission of an act that would

constitute felony escape ignores the clear mandates of due process. See In the Interest

of A. T., 246 Ga. App. at 31-32; D. P., 129 Ga. App. at 682-683 (2). Accordingly, this

argument fails.

16
 The State further argues in its appellate brief, again without citing a single case

to support its position, that the juvenile court properly committed J. W. to DJJ

custody under OCGA § 15-11-601 (a) (3) (B), which authorizes the court to place a

juvenile on probation under the supervision of “[a]ny public agency authorized by

law to receive and provide care for such child.” According to the State, the DJJ

qualifies as such an agency. This argument likewise lacks merit. First, the juvenile

court’s disposition in this case did not place J. W. on probation under the supervision

of a public agency; it committed him to DJJ custody. Second, OCGA § 15-11-601 (a)

(11) specifically addresses when a juvenile court may commit a juvenile to DJJ

custody, and this plain and unambiguous language prevails over the State’s stretched

interpretation of the DJJ as a public agency authorized to supervise a juvenile placed

on probation under OCGA § 15-11-601 (a) (3) (B). See generally In the Interest of

H. J. C., 331 Ga. App. at 510 (2) (“[J]udicial construction is appropriate only when

a statute is ambiguous, and when the statutory language is plain and unequivocal,

judicial construction is not only unnecessary but forbidden.”) (citation and

punctuation omitted).

Finally, the State contends in its appellate brief, yet again without citing a

single case to support its position, that the juvenile court properly committed J. W.

17
to DJJ custody because, under OCGA § 15-11-32 (b), the juvenile court was within

its authority to change, modify, or vacate its prior order – placing J. W. on probation

– “on the ground that changed circumstances so require in the best interests of a

child.” Even if a juvenile court is permitted to sua sponte change, modify, or vacate

its prior order, such was not done in this case; the trial court’s dispositional order

specifically adjudicates J. W. delinquent for the offense of violation of probation.

Because the juvenile court was not authorized to commit J. W. to DJJ custody

given the facts of this case, “the juvenile court’s sentence exceeds that allowed by law

and is void.” In the Interest of C. H., 319 Ga. App. at 375. Consequently, the

dispositional order in the instant case must be vacated and a new dispositional order

issued in a manner consistent with this opinion.

Judgment vacated and case remanded. Doyle, P. J., and Reese, J., concur.

18