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.

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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

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 An autopsy showed that the victim had an enlarged heart and blood clots in

his lungs, as well as other health conditions. 

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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

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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).

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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.’ssupervision by the GDJJ. See In the Interest of R. D.,

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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

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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 proceduresset forth in OCGA §§ 17-14-1

through 17-14-19.

Judgment vacated and case remanded. Andrews, P. J., and Branch, J., concur.

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