In the Interest of D. D., a Child

SECOND DIVISION
ANDREWS, P. J.,
MILLER, P. J., and BRANCH, J.
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
February 10, 2016
In the Court of Appeals of Georgia
A15A2345. IN THE INTEREST OF D. D., a child.
MILLER, Presiding Judge.
A juvenile court adjudicated D. D. delinquent for acts which, if committed by
an adult, would have constituted involuntary manslaughter (OCGA § 16-5-3 (a)) and
battery (OCGA § 16-5-23.1 (a)). D. D. appeals, contending that the juvenile court
erred in (1) expressly denying him credit for time served pending adjudication and
disposition; (2) ordering additional conditions of supervision to D. D.’s commitment
order; and (3) ordering restitution without holding a hearing. We agree, and note that
the State concedes all of these alleged errors. Accordingly, we vacate D. D.’s
commitment order and remand this case.
Where the facts are undisputed, we review the juvenile court’s application of
law de novo. See In the Interest of B. K., 326 Ga. App. 56 (755 SE2d 863) (2014).
So viewed, the evidence shows that, on the evening of July 18, 2014, then 16-
year-old D. D. got into a heated argument with the victim outside of the victim’s
garage. During the argument, D. D. punched the victim several times in the face with
a closed fist, causing the victim to fall to the ground. D. D. kept punching the victim
after he fell. Shortly thereafter, D. D.’s grandmother, who lived nearby, arrived in her
car and D. D. left with her. When EMS arrived, the victim was still on the ground and
was unresponsive. The victim then went into cardiac arrest and stopped breathing.
Although EMS and doctors at the hospital attempted to resuscitate the victim, they
were unsuccessful and the victim died at the hospital.1
D. D. was subsequently detained and placed at the Rockdale Youth Detention
Center pending his delinquency adjudication. Following a hearing, the juvenile court
entered an order adjudicating D. D. as a delinquent for having committed the acts of
involuntary manslaughter and simple battery. Thereafter, the juvenile court ordered
that D. D. be committed to the custody of the Georgia Department of Juvenile Justice
(GDJJ) for two years and ordered that he serve 30 days in a secure detention facility
“with no credit for time already served.” The juvenile court also placed additional
1
An autopsy showed that the victim had an enlarged heart and blood clots in
his lungs, as well as other health conditions.
2
conditions on D. D.’s supervision, including provisions that prohibited D. D. and his
family from having any contact with the victim’s widow and son; required him to
remain on house arrest within his residence; and conditioned his release into the
community on payment of restitution to the Georgia Crime Victim’s Compensation
Program.
1. D. D. contends that the juvenile court erred in expressly denying him credit
for the time he served in detention prior to his delinquency adjudication. We agree.
A child adjudicated to have committed a delinquent act shall be
given credit for each day spent in a secure residential facility, a
nonsecure residential facility, or any institution or facility for the
treatment or examination of a physical or mental disability awaiting
adjudication, pending disposition and in connection with and resulting
from a court order entered in the proceedings for which the disposition
was imposed and in any institution or facility for treatment or
examination of a physical or mental disability. Such credit shall be
applied toward the child’s disposition.
(Emphasis supplied.) OCGA § 15-11-604 (a); see also OCGA § 15-11-601 (11) (c)
(requiring juvenile court to give child credit for time served in a secure residential
3
facility).2 Moreover, the credit for time served applies to the disposition of all
offenses, including felonies. OCGA § 15-11-604 (b).
Here, the record shows that D. D. was detained for a total of 90 days in
restrictive detention while awaiting adjudication and that he spent an additional nine
days in detention after his adjudication, but before disposition of his case. Given the
foregoing statutory language, we agree that the juvenile court erred in expressly
refusing to give D. D. credit for the time he spent in restrictive detention. See In the
Interest of L. R., 316 Ga. App. 374, 375-376 (729 SE2d 520) (2012) (juvenile court
violated former OCGA § 15-11-63 (e) (1) (b) – now OCGA § 15-11-602 – in
expressly providing that delinquent child would receive no credit for pre-disposition
detention). Accordingly, we must vacate D. D.’s commitment order and remand this
case for resentencing. See id. at 376. Upon remand, the juvenile court is directed to
give D. D. credit for the 99 days he spent in restrictive detention prior to the
disposition of his case. See OCGA §§ 15-11-604 (a), 15-11-601 (11) (e) and 15-11-
604 (b).
2
Prior to the 2010 amendment to former OCGA § 15-11-66 (now OCGA § 15-
11-604), juveniles were not entitled to credit for time served prior to adjudication of
delinquency. See In the Interest of J. R., 2810 Ga. App. 143, 144 (1) (633 SE2d 447)
(2006).
4
2. D. D. contends that the juvenile court erred in placing mandatory conditions
on D. D.’s supervision when it ordered that D. D. be committed to the custody and
control of the GDJJ. Again, we agree.
When a juvenile is committed to the custody and control of the GDJJ,
custody and control of the juvenile is thereby and thereafter exclusively
in the [GDJJ], which is charged with responsibility to diagnose each
juvenile and to determine, implement, and periodically revise as needed
an individualized plan of care and treatment for each one.
(Punctuation and footnote omitted.) In the Interest of P. S., 295 Ga. App. 724, 726
(673 SE2d 74) (2009). Moreover, once a delinquent child is committed to the custody
and control of the GDJJ, the juvenile court has no power to make further provisions
dictating the disposition of the child. See In the Interest of R. D., 141 Ga. App. 843(234 SE2d 680) (1977) (interpreting former Code Ann. Title 24A; Ga. L. 1971, p. 709
et seq.); see also In the Interest of B. D. T., 219 Ga. App. 804, 805 (466 SE2d 680)
(1996) (juvenile court cannot commit a child to custody, and provide conditions
which control or limit the custodial authority’s discretion in dealing with the child).
Here, the juvenile court ordered that D. D. be committed to the custody of the
GDJJ for two years. Having done so, the juvenile court lacked the power to place
additional conditions on D. D.’s supervision by the GDJJ. See In the Interest of R. D.,
5
supra, at 843; In the Interest of B. D.T., supra, at 805. Upon remand, if the juvenile
court wants to ensure that D. D. meets certain conditions upon his release from
restrictive custody, the juvenile court can place D. D. in an institution, camp, or other
facility operated under the direction of the court or other local authority, rather than
committing D. D. to the custody and control of the GDJJ. See In the Interest of R. D.,
supra, at 844.
3. D. D. contends that the restitution provision in his commitment order is
unenforceable because the juvenile court failed to hold a restitution hearing. We
agree.
Pursuant to OCGA § 15-11-601 (7), a juvenile court may order a delinquent
child to make restitution. In doing so, however, the juvenile court must follow the
procedures set forth in OCGA §§ 17-14-1 through 17-14-19. These procedures
include the requirement of holding a hearing to determine restitution. See OCGA §
17-14-7 (b). At that hearing, the State has the burden of proving the amount of the
victim’s loss. See id. The defendant, on the other hand, has the burden of
demonstrating his present financial resources, obligations and needs. See Tobias v.
State, 319 Ga. App. 320, 329-330 (5) (735 SE2d 113) (2012). Here, the State
concedes that no restitution hearing was held and there was no evidence adduced at
6
the adjudication and disposition hearings with regard to the amount of the victim’s
loss or D. D.’s ability to pay restitution. Consequently, we must remand this case for
a restitution hearing in accordance with the procedures set forth in OCGA §§ 17-14-1
through 17-14-19.
Judgment vacated and case remanded. Andrews, P. J., and Branch, J., concur.
7