TITLE 49 SOCIAL SERVICES

4A. Department of Juvenile Justice, 49-4A-1 through 49-4A-18.

ARTICLE 9 TEMPORARY ASSISTANCE FOR NEEDY FAMILIES

49-4A-9. Sentence of youthful offenders; modification of order; review; participation in programs.

Any child who has previously been adjudged to have committed an act which is a felony if tried in a superior court and who, on a second or subsequent occasion, is convicted of a felony in a superior court may, in the discretion of the court, be sentenced into the custody of the department as otherwise provided by law or be committed as a youthful offender as authorized in Chapter 7 of Title 42; provided, further, that any child convicted of a felony punishable by death or by confinement for life shall only be sentenced into the custody of the Department of Corrections.
Any final order of judgment by the court in the case of any such child shall be subject to such modification from time to time as the court may consider to be for the welfare of such child. No commitment of any child to any institution or other custodial agency shall deprive the court of jurisdiction to change the form of the commitment or transfer the custody of the child to some other institution or agency on such conditions as the court may see fit to impose, the duty being constant upon the court to give to all children subject to its jurisdiction such oversight and control in the premises as will be conducive to the welfare of the child and the best interests of the state; provided, however, that the release of any child committed to the department for detention in any of its institutions under the terms of this chapter during the period of one year from the date of commitment shall be had only with the concurrence and recommendation of the commissioner or the commissioner's designated representative; provided, further, that upon releasing any child adjudicated for committing a delinquent act for the commission of a class A designated felony act or class B designated felony act as defined in Code Section 15-11-2 and committed to the department for detention in any of its institutions under the terms of this chapter, the department shall provide notice to any person who was the victim of the child's delinquent acts that the child is being released. So long as a good faith attempt to comply with the notice requirement of this subsection has been made, the department and employees of the department shall not be liable for damages incurred by reason of the department's failure to provide the notice required by this subsection.
After the expiration of one year from the date of commitment, the committing court shall review the case and make such order with respect to the continued confinement or release of the child back to the committing court for further disposition as the court deems proper.
In the event adequate facilities are not available, the department shall have the right to transfer youths committed to the department under this Code section to the Department of Corrections for incarceration in an appropriate facility designated by the Department of Corrections.
Any child under 17 years of age who is sentenced in the superior court and committed to the department may be eligible to participate in all juvenile detention facility programs and services including community work programs, sheltered workshops, special state sponsored programs for evaluation and services under the Georgia Vocational Rehabilitation Agency and the Department of Behavioral Health and Developmental Disabilities, and under the general supervision of juvenile detention facility staff at special planned activities outside of the juvenile detention facility. When such a child sentenced in the superior court is approaching his or her seventeenth birthday, the department shall notify the court that a further disposition of the child is necessary. The department shall provide the court with information concerning the participation and progress of the child in programs described in this subsection. The court shall review the case and determine if the child, upon becoming 17 years of age, should be placed on probation, have his or her sentence reduced, be transferred to the Department of Corrections for the remainder of the original sentence, or be subject to any other determination authorized by law.

(Code 1981, §49-4A-9, enacted by Ga. L. 1992, p. 1983, § 24; Ga. L. 1995, p. 619, § 9; Ga. L. 2000, p. 20, § 27; Ga. L. 2000, p. 1137, § 2; Ga. L. 2002, p. 1324, § 1-22; Ga. L. 2009, p. 453, § 3-4/HB 228; Ga. L. 2012, p. 303, § 3/HB 1146; Ga. L. 2013, p. 294, § 3-9/HB 242.)

JUDICIAL DECISIONS

Probation for remainder of sentence permitted.

- In light of the express authority provided to review the defendant juvenile's sentence before the defendant turned 17, the superior court was authorized to place the defendant on probation for the remainder of the defendant's sentence based on the court's finding of the defendant's rehabilitation, which finding was supported by the record. State v. T. M. H., 339 Ga. App. 628, 794 S.E.2d 201 (2016).

The 2012 amendment, effective July 1, 2012, substituted "Georgia Vocational Rehabilitation Agency" for "Division of Rehabilitation Services of the Department of Labor" in the first sentence of subsection (e).

The 2013 amendment, effective January 1, 2014, in subsection (b), in the second sentence, deleted "or parole" preceding "of any child" in the first proviso, in the second proviso, deleted "or paroling" following "upon releasing", substituted "for committing a delinquent act" for "delinquent", inserted "class A designated felony act or class B", substituted "Code Section 15-11-2" for "Code Section 15-11-63", and deleted "or paroled" following "released" at the end, and, in the last sentence, substituted "So long as" for "As long as" at the beginning; and, in subsection (e), substituted "juvenile detention facility" for "youth development center" three times in the first sentence. See editor's note for applicability.

Editor's notes.

- Ga. L. 2013, p. 294, § 5-1/HB 242, not codified by the General Assembly, provides that: "This Act shall become effective on January 1, 2014, and shall apply to all offenses which occur and juvenile proceedings commenced on and after such date. Any offense occurring before January 1, 2014, shall be governed by the statute in effect at the time of such offense and shall be considered a prior adjudication for the purpose of imposing a disposition that provides for a different penalty for subsequent adjudications, of whatever class, pursuant to this Act. The enactment of this Act shall not affect any prosecutions for acts occurring before January 1, 2014, and shall not act as an abatement of any such prosecutions."

Administrative Rules and Regulations.

- Administrative revocations of juvenile community placement, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Juvenile Justice, Chapter 97-2.

Custody of juvenile until 21 years.

- Ordering that the juvenile remain in the Department of Juvenile Justice custody until the juvenile reaches 21 years of age is neither authorized by O.C.G.A. § 49-4A-9(e) or any other provision of Georgia law. Ga. Dep't of Juvenile Justice v. Eller, 338 Ga. App. 247, 789 S.E.2d 412 (2016).

While O.C.G.A. § 49-4A-9(b) provides the superior court broad discretion to modify the court's orders for the welfare of any child subject to the court's jurisdiction, the plain language of subsection (e) of O.C.G.A. § 49-4A-9 limits that discretion once that child becomes 17 years of age. Ga. Dep't of Juvenile Justice v. Eller, 338 Ga. App. 247, 789 S.E.2d 412 (2016).

Judgment of the trial court directing the Department of Juvenile Justice (DJJ) to hold in the Department's custody a criminal defendant prosecuted as an adult for a crime committed as a juvenile, until the defendant turned 21 years old, was reversed because ordering that the defendant remain in DJJ custody until reaching 21 years of age was neither authorized by O.C.G.A. § 49-4A-9(e) or any other provision of Georgia law. Ga. Dep't of Juvenile Justice v. Eller, 338 Ga. App. 247, 789 S.E.2d 412 (2016).

Discretion is limited by mandatory minimum sentencing.

- Discretion given to sentencing courts for reviewing the sentences of juveniles turning 17 in O.C.G.A. § 49-4A-9(e) was limited by the mandatory minimum sentence requirements of O.C.G.A. § 17-10-6.1; therefore, in reviewing a juvenile's prison sentence for armed robbery, the superior court erred by reducing the juvenile's original five-year prison sentence to which the state had agreed. State v. Hudson, 303 Ga. 348, 812 S.E.2d 270 (2018).

OPINIONS OF THE ATTORNEY GENERAL

Application to juveniles prosecuted as adults.

- O.C.G.A. § 49-4A-9(e) applies to all juveniles convicted of a felony in superior court, except those for which potential punishments include the death penalty or life imprisonment. 1996 Op. Att'y Gen. No. U96-5.

RESEARCH REFERENCES

ALR.

- State statutes or ordinances requiring persons previously convicted of crime to register with authorities as applied to juvenile offenders - Constitutional issues, 37 A.L.R.6th 55.

State statutes or ordinances requiring persons previously convicted of crime to register with authorities as applied to juvenile offenders - duty to register, requirements for registration, and procedural matters, 38 A.L.R.6th 1.

State statutes or ordinances requiring persons previously convicted of crime to register with authorities as applied to juvenile offenders - expungement, stay or deferral, exceptions, exemptions, and waiver, 39 A.L.R.6th 577.