                                FIRST DIVISION
                                 BARNES, P. J.,
                            MCMILLIAN and REESE, 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


                                                                        May 15, 2018




      In the Court of Appeals of Georgia


 A18A0364. IN THE INTEREST OF C. W., a child.

      MCMILLIAN, Judge.

      This case concerns the timeliness of an oral motion to dismiss two counts of

a delinquency petition on the basis that the victim of the alleged acts of delinquency

was not named. We find that under the facts of this case the motion was not timely

or properly made and accordingly reverse the juvenile court’s order dismissing the

challenged counts.

      The record shows that C. W. was arrested on January 25, 2017, and placed in

detention, which was continued following a hearing a few days later. A delinquency

petition was filed on January 31, 2017, alleging delinquent acts which, had C. W.

been an adult, would constitute the crimes of attempted aggravated sodomy (Count

1); attempted sodomy (Count 2); sexual battery (Count 3); and two counts of simple
battery (Counts 4 & 5); Counts 1 and 2 referred only to the “victim,” while the

remaining counts referred to the victim by name. An amended delinquency petition

was filed on February 1, 2017, adding an additional count of simple battery against

a different victim, who was referred to by name (Count 6).

      An adjudicatory hearing was held on February 3, 2017. After the witnesses

were sworn but before the State could call its first witness, C. W.’s counsel made a

motion to dismiss Counts 1 and 2 of the delinquency petition, arguing that those

counts were fatally defective because they did not name the victim of the alleged acts

of delinquency, violating the juvenile’s due process rights. The State opposed the

motion, and the juvenile court took the matter under advisement and continued the

hearing. The juvenile court subsequently granted the motion to dismiss, finding that

C. W.’s due process rights were violated because Counts 1 and 2 failed to provide

sufficient information for him to prepare his defense. The juvenile court also rejected

the State’s argument that the motion should be denied because it was not in writing

and untimely. Pursuant to OCGA § 5-7-1 (a), the State then filed this appeal.1



      1
        We note also that although other counts remained pending below, the State
was not required to file an application for interlocutory review. See OCGA §§ 5-7-1,
5-7-2 (b) (2).

                                          2
      The resolution of this appeal requires us to answer two questions – (1) whether

the delinquency petition was subject to challenge because the name of the victim was

not disclosed, and (2) whether the juvenile’s challenge to the petition in the form of

a motion to dismiss was timely and properly made. We agree with the juvenile court

that the delinquency petition was subject to dismissal because it did not disclose the

name of the victim, but find that the juvenile’s oral motion to dismiss was not timely

or properly brought.

      There is no question that a juvenile in a delinquency proceeding is entitled to

“scrupulous adherence to due process[.]” C. L. T. v. State, 157 Ga. App. 180, 180 (1)

(276 SE2d 862) (1981). See also OCGA § 15-11-470 (“The purpose of this article

is:... (2) To accord due process of law to each child who is accused of having

committed a delinquent act[.]”) Thus, while a delinquency petition does not have to

be drafted with the “exactitude” of a criminal accusation or indictment, it must satisfy

due process. T. L. T. v. State, 133 Ga. App. 895, 897 (1) (212 SE2d 650) (1975).

      To comport with due process, the language of a delinquency petition must pass

two tests “(1) it must contain sufficient factual details to inform the juvenile of the

nature of the offense; and (2) it must provide data adequate to enable the accused to

prepare his defense.” T. L. T., 133 Ga. App. at 897 (1). See also In re Gault, 387 U.S.

                                           3
1, 33 III (87 SCt 1428, 18 LE2d 527) (1967) (the delinquency petition must “set forth

the alleged misconduct with particularity” to satisfy due process); OCGA § 15-11-522

(The delinquency petition must set forth “plainly and with particularity: (1) the facts

which bring a child within the jurisdiction of the court[.]”); In the Interest of C. H.,

306 Ga. App. 834, 837 (4) (703 SE2d 407) (2010) (trial court erred in denying special

demurrer when petition did not allege misconduct with particularity); cf. C. L. T., 157

Ga. App. at 180 (1) (delinquency petition sufficient to charge simple assault when it

alleged altercation between juvenile and his mother and father).

       Our law is settled that an allegation that the accused has committed a crime

against a particular person that does not contain the name of the victim is considered

deficient and subject to challenge. E.g., State v. Grube, 293 Ga. 257, 260 (2) (744

SE2d 1) (2013); Dennard v. State, 243 Ga. App. 868 (534 SE2d 182) (2000). But

contrary to C. W.’s argument on appeal, in the context of criminal adult proceedings,

this type of challenge is considered a challenge to the form, not the substance, of the

indictment because it is a demand for more information or specificity so that the

accused can properly prepare his or her defense, not a challenge that the indictment

fails because it is lacking an essential element of the charged offense. Accordingly,

it is in the nature of a special, rather than a general demurrer. Sellers v. State, 263 Ga.

                                            4
App. 144, 145 (587 SE2d 276) (2003); Kimbrough v. State, 300 Ga. 878, 880 (2) (799

SE2d 229) (2017) (“A special demurrer,... challenges the sufficiency of the form of

the indictment,... [or claims] that the accused is entitled to more information.”).

(citation and punctuation omitted; emphasis in original.) And while a general

demurrer may be made at any time, a special demurrer or motion seeking this type of

information may be waived if not timely made and in writing. See Palmer v. State,

282 Ga. 466 (651 SE2d 86) (2007) (discussing time limits for filing a special

demurrer); see OCGA §§§ 17-7-110, 17-7-111, 17-7-113 (setting out time limits and

writing requirements for special demurrers in the context of adult criminal

proceedings).

      The question then is how a juvenile must challenge the sufficiency of a

delinquency petition on the basis that the identity of the victim of a crime against a

person was not disclosed. Although the Juvenile Code does not set out a specific

procedure for filing a motion in the nature of a special demurrer, Uniform Juvenile

Court Rule 7.9 sets out the time for filing pretrial motions as follows: “All other

pretrial motions2 must be made in writing and filed not later than three (3) days,

      2
       The Uniform Juvenile Court Rules separately address discovery motions and
motions in the nature of responsive pleadings. See Uniform Juvenile Court Rules 6.9
and 7.4.

                                          5
excluding weekends and holidays, before the adjudicatory hearing unless otherwise

permitted by the court.” Further, the Uniform Juvenile Court Rules contemplate the

need to amend pleadings before the adjudicatory hearing, and specifically provide

that “[u]pon the motion of any party,” the juvenile court will hold a pretrial

conference to consider “[t]he necessity or desirability of amendments to the

pleadings.” Uniform Juvenile Court Rule 7.5. Accordingly, the motion to dismiss in

this case, which was made orally and after the first witness was sworn at the

adjudicatory hearing,3 was untimely and not in the proper form.

      Lastly, although we note that the strict time limitations for holding the

adjudicatory hearing might pose difficulties in meeting these requirements in some

circumstances,4 potentially raising due process concerns, none of those circumstances

are present here. Although the petition was amended to add an additional count

several days before the hearing, the victim was named in that count and C. W. did not

move to dismiss the added count. Further, the name of the victim of Counts 1 and 2



      3
        OCGA § 15-11-480 (a) provides that jeopardy attaches in a juvenile
proceeding when the first witness is sworn at the adjudicatory hearing.
      4
         OCGA § 15-11-582 requires an adjudicatory hearing to be held no later than
ten days after the filing of the delinquency petition if the child is in detention, and no
later than sixty days after the filing of the petition if the child is not in detention.

                                            6
was disclosed at the detention hearing on January 27, 2017. And lastly, it appears that

C. W.’s attorney intentionally waited until jeopardy had attached and the State could

not amend the delinquency petition5 before moving to dismiss.6 Under these

circumstances, C. W. waived his right to be adjudicated on a delinquency petition

“perfect in form,” and the juvenile court’s order dismissing Counts 1 and 2 of the

petition must be reversed.

      Judgment reversed. Barnes, P. J., and Reese, J., concur.




      5
        After jeopardy attaches, a petition alleging delinquency may not be amended
to include new charges of delinquency. OCGA § 15-11-523 (c).
      6
         Immediately before moving to dismiss, C. W.’s attorney stated “[N]ow that
the first witness has been sworn, I do have a motion to make before the Court.”

                                          7
