                               FOURTH DIVISION
                                 BARNES, P. J.,
                             RAY and MCMILLIAN, JJ.

                    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 26, 2016


In the Court of Appeals of Georgia
 A15A2157. IN THE INTEREST OF J. H., A CHILD.

      BARNES, Presiding Judge.

      The sole issue in this case involves the juvenile court’s interpretation of

OCGA § 15-11-523, which governs the amendment of a juvenile delinquency

petition. After a delinquency hearing had commenced, the juvenile court permitted

the prosecuting attorney to orally amend the petition to prosecute one of the charges

– Criminal Gang Activity – as a Designated Felony. This court granted the juvenile’s

application for interlocutory appeal, and for the reasons that follow, we reverse the

trial court’s order allowing the amendment.

      The State filed a petition seeking an adjudication of delinquency against 15-

year-old J. H., alleging that he had committed four offenses that would have

constituted crimes if he had been an adult: burglary, reckless driving, fleeing or

attempting to elude a police officer, and criminal gang activity. After the adjudication

hearing began on April 28, 2015, J. H. entered admissions to the first three offenses
of burglary, reckless driving, and fleeing or attempting to elude, but denied the charge

of gang activity. After advising J. H. of his rights and asking the prosecutor what the

evidence would show regarding those charges, the juvenile court found a factual basis

for the admissions and accepted them. The court then instructed the prosecuting

attorney to call the first witness on the offense of gang activity.

      At that point in the adjudication hearing, the parties and the court held a

discussion regarding the fact that the delinquency petition did not indicate that the

fourth count was a Designated Felony, which was required under the revised Juvenile

Code. The prosecuting attorney orally moved to amend the delinquency petition to

state that the offense was being prosecuted under the Designated Felony provisions

of Title 15. J. H. objected, asserting that jeopardy had already attached and that such

an amendment was barred by statute.

      The trial court granted the prosecutor’s motion to amend, reasoning that the

prosecutor was not adding a new charge of delinquency, but was merely amending

the petition to correct the pleading defect of having omitted the label of “Designated

Felony.” At that point the court continued the hearing on the delinquency petition to

give J. H. an opportunity to file a petition for a certificate of immediate review,

although it committed J. H. to two years in custody based on a previous petition

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during which J. H. had been adjudicated delinquent based on three counts of

terroristic threats.

       J. H. argues on appeal that the trial court erred in allowing the prosecutor to

amend the petition after jeopardy had attached.

       Under Georgia’s rules of statutory construction, this court is charged with

looking “diligently for the intention of the General Assembly, keeping in view at all

times the old law, the evil, and the remedy.” OCGA § 1-3-1 (a). A fundamental

principle of statutory construction is “that we must endeavor to give each part of the

statute meaning and avoid a construction that makes some language mere

surplusage.” (Citation and punctuation omitted.) In the Interest of C. M. B., ___ Ga.

App. ___ (Case No. A15A2070, decided Jan. 11, 2016).

       Further, “all statutes relating to the same subject-matter, briefly called statutes

‘in pari materia,’ are construed together, and harmonized wherever possible, so as to

ascertain the legislative intendment and give effect thereto.” (Citation and

punctuation omitted.) In the Interest of H.E.B., 303 Ga. App. 895, 896 (695 SE2d

332) (2010).




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          The Georgia legislature revised the Juvenile Code effective January 1, 2014.1

  Both the previous code and the current code direct that the delinquency petition “shall

  set forth plainly and with particularity” certain information, such as the facts that

  brought the child within the court’s jurisdiction, the name and address of the child

  and his parents, guardians, or custodians if known, and details of the child’s

  detention, if any. OCGA § 15-11-522 (2015); former OCGA § 15-11-38.1. In the new

  code effective January 2014, the legislature added a requirement that the petition

  include whether “the child is being charged with a Class A designated felony act or

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

          Whether a juvenile is adjudicated for committing a Designated Felony or

  simply a delinquent act significantly alters the length of the commitment available.

  The maximum length of commitment for a delinquent act is 24 months, with the

  possibility of a 24-month extension. OCGA § 15-11-607 (a). In contrast, an

  adjudication of delinquency for a Class A Designated Felony may result in restrictive

  custody with the Department of Juvenile Justice (DJJ) for as long as 60 months, and



      1
       “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.” Ga. L. 2013,
p. 294, § 5-1/HB 242.

                                            4
for a Class B Felony, in DJJ custody for 36 months, with a maximum of 18 months

in restrictive custody. See OCGA §§ 15-11-602 (a) (2), (c) (1), (d) (1).

      Before the enactment of the current juvenile code, the State was allowed to

amend a delinquency petition to add charges at any time before adjudication. The

statute was silent on the issue, but the Uniform Rules of Juvenile Court, Rule 6.6

provided that “[a] petition may be amended at any time prior to adjudication,

provided that the court shall grant the parties additional time to prepare as may be

required to ensure a full and fair hearing.” Further, if the amendment added additional

charges, the amended petition had to be served in accordance with former OCGA §§

15-11-39, 15-11-39.1, which directed that the petition and a summons be served on

the child and his or her parents, guardians, or legal custodians at least 24 hours before

the hearing. See In the Interest of D. W., 232 Ga. App. 777, 779 (1) (a) (503 SE2d

647) (1998) (reversing delinquency conviction when court allowed State to amend

a delinquency petition mid-hearing to revise misdemeanor battery charge to

designated felony charge of battery against school official, absent service and notice).

      The revised juvenile code includes a completely new provision that addresses

the timing of delinquency petition amendments. OCGA § 15-11-523 provides:



                                           5
          (a) A prosecuting attorney may amend a petition alleging delinquency
          at any time prior to the commencement of the adjudication hearing.
          However, if an amendment is made, a child may request a continuance
          of his or her adjudication hearing. A continuance may be granted by the
          court for such period as required in the interest of justice.


          (b) When a petition alleging delinquency is amended to include material
          changes to the allegations or new charges of delinquency for
          adjudication, the petition shall be served in accordance with Code
          Sections 15-11-530 and 15-11-531.2


          (c) After jeopardy attaches, a petition alleging delinquency shall not be
          amended to include new charges of delinquency.


          OCGA § 15-11-480 (b) specifically provides that jeopardy attaches when the

  juvenile court accepts a child’s admission to a petition alleging delinquency, and the

  State concedes that jeopardy had attached in this case before the juvenile court

  granted the oral motion to amend the petition. See In the Interest of K. L., 303 Ga.

  App. 679, 681 (2) (694 SE2d 372) (2010); In Interest of J. B. W., 230 Ga. App. 673,

  675 (497 SE2d 1) (1998).



      2
        OCGA § 15-11-530 (a) directs that the summons and petition be served on the child
and his or her parent, guardian, or legal custodian, and 15-11-531 (a) requires the summons
be served at least 72 hours before the hearing rather than the previous 24-hour minimum.

                                              6
      In its written order granting the prosecution’s motion to amend the delinquency

petition in this case, the juvenile court stated that it “interpret[ed] OCGA § 15-11-523

to allow the prosecuting attorney to amend the petition to prosecute the Criminal

Gang Activity charge under the Designated Felony Act even after the adjudication

hearing ha[d] commenced and the Court ha[d] accepted the child’s admission to three

other charges on the same petition.”

      The State argues that “the sole, express purpose” of OCGA § 15-11-522 (5),

requiring that the petition state whether the child is being charged with a class A or

a class B designated felony act, is to give the juvenile advance notice of any

designated felony charges, and here, J. H. had ample advance notice of the charges.

But when “the language of a statute is plain and unambiguous, judicial construction

is not only unnecessary but forbidden.” (Citation and punctuation omitted.) In the

Interest of M.D.H., 334 Ga. App. 394, 396 (2) (779 SE2d 433) (2015). We cannot

engraft upon this statute a proviso excepting a case from its requirements when

certain factual issues are present, absent statutory language allowing such an

exception.

      The State’s amendment to the petition in this case did not add a new charge of

delinquency, an action plainly prohibited by OCGA § 15-11-523 (c). The State had

                                           7
already charged J. H. with the offense of “Participation in Criminal Street Gang

Activity” by committing burglary while associated with a criminal street gang, along

with the three charges to which the juvenile court accepted J. H.’s admissions. Nor

does subsection (a) of OCGA § 15-11-523 apply here, which allows the prosecuting

attorney to amend the petition as of right before the hearing begins and the court to

continue the hearing “for such period as required in the interest of justice” if

requested by the juvenile, because the hearing had already begun.

      Subsection (b) of OCGA § 15-11-523, however, provides that if the

prosecuting attorney amends a delinquency petition to effect “material changes to the

allegations . . . , the petition shall be served in accordance with Code Sections

15-11-530 and 15-11-531,” (emphasis supplied) that is, served upon the child and his

parent, guardian, or legal custodian at least 72 hours before the hearing. Alleging that

the juvenile committed a designated felony materially changes the petition by

allowing the juvenile court to impose a much lengthier sentence. Interpreting OCGA

§ 15-11-523 only to prohibit adding new charges to a delinquency petition after

jeopardy attaches would render the mandatory service requirements of subsection (b)

meaningless surplusage.



                                           8
      Construing OCGA § 15-11-522 (5), which requires a delinquency petition to

state whether any charges are designated felonies, with § 15-11-523 (b), which

requires that a material amendment to the petition be served to the child and certain

designated persons at least 72 hours before the hearing, we conclude that the

legislature intended to prohibit the State from materially amending a delinquency

petition after the hearing had commenced and after jeopardy attached. Accordingly,

because the State sought to make a material amendment to the petition absent proper

notice and service, the trial court erred in allowing the amendment.

      Judgment reversed. Ray and McMillian, JJ., concur.




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