O.C.G.A. § 15-11-608 (2019)

Annotations

JUDICIAL DECISIONS ANALYSIS GENERAL CONSIDERATION MODIFICATION OR VACATION OF ORDERS REVOCATION OF PROBATION General Consideration Editor’s notes. - In light of the similarity of the statutory provisions, decisions under former Code 1933, § 24A-2801, pre-2000 Code Section 15-11-42, and pre-2014 Code Section 15-11-40, which were subsequently repealed but were succeeded by provisions in this Code section, are included in the annotations for this Code section. See the Editor’s notes at the beginning of the chapter. Cited in In the Interest of H. J. C., 331 Ga. App. 506, 771 S.E.2d 184 (2015). Modification or Vacation of Orders Reduction in sentence not authorized. - Although former O.C.G.A. § 15-11-40(b) (see now O.C.G.A. §§ 15-11-32, 15-11-444, and 15-11-608) prohibited the change, modification, or vacation of a commitment order once a child is in the custody of the Department of Juvenile Justice ‘‘on the ground that changed circumstances so require in the best interest of the child’’ or because the child had been rehabilitated, the statute did not prohibit the change, modification, or vacation of a commitment order on

other grounds. Further the application of former § 15-11-40(b) did not render former O.C.G.A. § 15-11-63(e)(2)(C) (see now O.C.G.A. § 15-11-602) purposeless in these circumstances when the juvenile based a reduction in sentence on rehabilitation. In re T. H., 298 Ga. App. 536, 680 S.E.2d 569 (2009) (decided under former O.C.G.A. § 15-11-40). Commitment order could not be changed. - Defendant moved for early release from a youth development center on grounds that alleged changed circumstances required release in the best interests of the child. The motion was properly denied because under former O.C.G.A. § 15-11-40(b) (see now O.C.G.A. §§ 15-11-32, 15-11-444, and 15-11-608), once the Georgia Department of Juvenile Justice had physical custody, a commitment order could not be changed on that basis but could be changed on other grounds. In the Interest of J.W., 293 Ga. App. 408, 667 S.E.2d 161 (2008) (decided under former O.C.G.A. § 15-11-40). Modification of a juvenile commitment order under former O.C.G.A. § 15-11-40(b) (see now O.C.G.A. §§ 15-11-32, 15-11-444, and 15-11-608) on the ground that changed circumstances

Modification or Vacation of Orders (Cont’d) required modification in the best interest of the child was not available to a minor because the minor was already in the custody of the Department of Juvenile Justice; the fact that the custody was based on the minor’s restrictive custody under a different commitment order, and not on the commitment order the minor sought to modify, had no bearing on whether the modification could be made. In the Interest of P.S., 295 Ga. App. 724, 673 S.E.2d 74 (2009) (decided under former O.C.G.A. § 15-11-40). Although former O.C.G.A. § 15-11-63 (see now O.C.G.A. §§ 15-11-2, 15-11-471, 15-11-602, and 15-11-707) suggested that a juvenile defendant could move for early release from a youth development center after the defendant was already in custody, former O.C.G.A. § 15-11-40(b) (see now O.C.G.A. §§ 15-11-32, 15-11-444, and 15-11-608) prohibited modification of a commitment order on the grounds of changed circumstances. As a change in circumstances was the basis of the defendant’s motion for early release, the juvenile court lacked jurisdiction to grant the motion. In re K.F., 299 Ga. App. 685, 683 S.E.2d 650 (2009) (decided under former O.C.G.A. § 15-11-40). Contents of motion. - If the substance of a post-trial motion made no reference to any of the factors which would warrant the vacation or modification of the juvenile court’s order, it could not be considered a motion to modify or vacate, thus an appeal could not be taken. In re C.M., 205 Ga. App. 543, 423 S.E.2d 280, cert. denied, 205 Ga. App. 900, 423 S.E.2d 280 (1992) (decided under former O.C.G.A. § 15-11-42). Probation violation included in justification of delinquency petition. - Juvenile court erred when the court dismissed the state’s petition alleging that a child had committed the delinquent act of violating probation as O.C.G.A. § 15-11-2(19)(B) plainly included a probation violation in the category of actions that may give rise to a new delinquency petition and O.C.G.A. § 15-11-608(b) plainly permitted the filing of a motion for

revocation of probation, and no court is authorized to ignore either a petition brought under the first or a motion brought under the second. In the Interest of H. J. C., 331 Ga. App. 506, 771 S.E.2d 184 (2015). Evidence insufficient to support finding of delinquency. - Trial court erred in denying the defendant juvenile’s motion to reconsider, vacate, or modify a delinquent adjudication for the offense of simple assault because the evidence was insufficient to support the finding of delinquency since, pursuant to O.C.G.A. § 16-5-20(a)(2), the crime of simple assault required proof that the defendant’s actions placed the defendant’s grandmother in reasonable apprehension of immediately receiving a violent injury, but the only evidence of that fact was hearsay; a police officer, who was the only witness, testified that the grandmother told the officer that the grandmother was afraid of the defendant, and that the defendant was perhaps going to hit the grandmother, but the officer admitted that there were no allegations that the defendant attempted to hit the grandmother, nor did the officer witness any of the alleged events. In the Interest of J. L. K., 302 Ga. App. 844, 691 S.E.2d 892 (2010) (decided under former O.C.G.A. § 15-11-40). New disposition was sanction for original offense. - Although the initial act of bringing a weapon to school was not a designated felony under the statute in effect when a juvenile’s probation was revoked, a dispositional order imposed upon revocation of probation related to the original delinquent act because the new disposition was a sanction for the original offense. In the Interest of N.M., 316 Ga. App. 649, 730 S.E.2d 127 (2012) (decided under former O.C.G.A. § 15-11-40). Modification based on failure to provide interpreter to parents. - Juvenile court did not abuse its discretion in denying the parents’ motion to modify or set aside the termination of parental rights order based on the parents’ claim that a language barrier existed at the time of the termination hearing and during critical times in their case because the parents did not assert that the Georgia

Department of Family and Children Services should have provided the parents with an interpreter who spoke their Guatemalan dialect of Mam. In the Interest of A. M., 324 Ga. App. 512, 751 S.E.2d 144 (2013). Revocation of Probation There is no double jeopardy protection against revocation of probation and the imposition of imprisonment. In re B.N.D., 185 Ga. App. 906, 366 S.E.2d 187, cert. denied, 185 Ga. App. 910, 366 S.E.2d 187 (1988) (decided under former O.C.G.A. § 15-11-42). Hearing in juvenile court seeking termination of probation must be treated as a delinquency trial. K.E.S. v. State, 134 Ga. App. 843, 216 S.E.2d 670 (1975) (decided under former Code 1933, § 24A-2801); T.S.I. v. State, 139 Ga. App. 775, 229 S.E.2d 553 (1976) (decided under former O.C.G.A. § 15-11-42). Hearing to determine delinquency required prior to revocation of probation. - In order to revoke a juvenile’s probation, a de novo hearing is required to determine whether a delinquent act has been committed and that the child is delinquent. T.S.I. v. State, 139 Ga. App. 775, 229 S.E.2d 553 (1976) (decided under former Code 1933, § 24A-2801).

Juvenile court cannot sua sponte revoke probation and order a disposition as for a ‘‘designated felony act’’ after conducting a hearing on a petition which alleges only delinquency by reason of the commission of an act not within the ambit of former O.C.G.A. § 15-11-37 (see now O.C.G.A. §§ 15-11-2, 15-11-471, 15-11-602, and 15-11-707). Before a juvenile court may revoke an order granting probation, a petition must be filed requesting such relief. In re B.C., 169 Ga. App. 200, 311 S.E.2d 857 (1983) (decided under former O.C.G.A. § 15-11-42). Burden of proof in revocation proceeding. - Finding of delinquency through parole violation in a revocation proceeding must be on proof beyond a reasonable doubt. T.S.I. v. State, 139 Ga. App. 775, 229 S.E.2d 553 (1976) (decided under former Code 1933, § 24A-2801). Slight evidence will not be sufficient to authorize revocation of juvenile’s probation. T.S.I. v. State, 139 Ga. App. 775, 229 S.E.2d 553 (1976) (decided under former Code 1933, § 24A-2801). Juvenile proceeding differs from adult hearing. - Juvenile revocation of probation proceedings is not analogous to adult probation revocation hearings. T.S.I. v. State, 139 Ga. App. 775, 229 S.E.2d 553 (1976) (decided under former Code 1933, § 24A-2801).

RESEARCH REFERENCES Am. Jur. 2d. - 42 Am. Jur. 2d, Infants, § 51. 47 Am. Jur. 2d, Juvenile Courts and Delinquent and Dependent Children, § 113 et seq.

C.J.S. - 43 C.J.S., Infants, § 245 et seq. U.L.A. - Uniform Juvenile Court Act (U.L.A.) § 37.

PART 13 PERMANENCY PLANNING FOR DELINQUENT AND DEPENDENT CHILDREN