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                                http://www.gaappeals.us/rules


                                                                       July 15, 2016




In the Court of Appeals of Georgia
 A16A0526. GEORGIA DEPARTMENT OF JUVENILE JUSTICE
     v. DANIEL LEE ELLER.

      RICKMAN, Judge.

      The Department of Juvenile Justice (“DJJ”), though a non-party to the

proceedings below,1 appeals from a superior court order directing DJJ to hold in its

custody Daniel Lee Eller, a criminal defendant prosecuted as an adult for a crime he

committed as a juvenile, until he turns 21 years old. DJJ contends that, contrary to the


      1
         DJJ has standing to appeal the superior court’s order pursuant to OCGA § 5-
7-1 (a) (6) (“An appeal may be taken by and on behalf of the State of Georgia . . .
[f]rom an order, decision, or judgment of a court where the court does not have
jurisdiction or the order is otherwise void under the Constitution or laws of this
state.”). See also OCGA § 5-6-34 (1); Darden v. Ravan, 232 Ga. 756, 758 (1) (208
SE2d 846) (1974) (“A judgment rendered sua sponte by the superior court which
mandates actions and which, if valid, would authorize the court to hold the persons
named in such judgment in contempt of court is an appealable judgment.”)
superior court’s directive, the plain language of OCGA § 17-10-14 (a) mandates that

Eller be transferred to the Department of Corrections upon his seventeenth birthday.

We agree and reverse.

      The record shows that in 2013, Eller entered a negotiated guilty plea to child

molestation and burglary in the Superior Court of Hall County. Eller was 15-years old

at the time of the crime, and was prosecuted as an adult in the superior court. He

received a 40-year sentence, with 15 years to be served in confinement.

      During the sentencing hearing, defense counsel requested the judge to direct

that Eller remain in the custody of DJJ until he turned 21 years old, and the State

indicated it had no objection to the request. Although the judge expressly questioned

her authority to impose that specific condition on Eller’s sentence, she ultimately

agreed to it after both parties took the position that she was authorized to do so.

      In January 2014, when Eller turned 17 years old, the Department of Corrections

attempted to take Eller into its custody pursuant to OCGA § 17-10-14 (a). The

superior court conducted a sentence review hearing,2 after which it ordered that Eller




      2
          The hearing was conducted pursuant to OCGA § 49-4A-9 (e), as discussed
below.

                                          2
was to remain in the custody of DJJ until his twenty-first birthday. DJJ appeals,

arguing that the superior court’s order violates Georgia law.

      As asserted by the DJJ, OCGA § 17-10-14 (a) mandated a transfer of Eller to

the Department of Corrections upon Eller’s seventeenth birthday:

      [When] a person under the age of 17 years is convicted of a felony and
      sentenced as an adult . . . to a certain term of imprisonment, such person
      shall be committed to the Department of Juvenile Justice to serve such
      sentence in a detention center of such department until such person is 17
      years of age at which time such person shall be transferred to the
      Department of Corrections to serve the remainder of the sentence. . . .


(Emphasis supplied.)

      Notwithstanding the foregoing statutory mandate, Eller asserts that his

retention in DJJ custody is authorized by OCGA § 49-4A-9 (e). That statute provides

that when a child under the age of 17 years who was convicted of a felony and

sentenced in the superior court as an adult approaches the age of 17, the DJJ

      shall notify the court that a further disposition of the child is necessary.
      . . . 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.


                                           3
(Emphasis supplied.) Eller maintains that by directing DJJ to retain custody of him

until he turns 21 years old, the superior court lawfully exercised its authority to

subject him to “any other determination.”3

      When read together, we reject Eller’s contention that OCGA § 49-4A-9 (e)

authorized the superior court to disregard the mandates of OCGA § 17-10-14 (a)

under the circumstances presented in this case. It is axiomatic that “[when] the

language of a statute is plain and susceptible to only one natural and reasonable

construction, courts must construe the statute accordingly.” (Citation and punctuation

omitted.) Hough v. State, 279 Ga. 711, 716 (2) (a) (620 SE2d 380) (2005); see

Mullins v. First General Ins. Co., 253 Ga. 486, 487 (322 SE2d 265) (1984). In fact,

judicial construction of the language of an unambiguous statute “is not only

unnecessary but forbidden.” (Citation and punctuation omitted.) Hough, 279 Ga. 716

(2) (a); see Fleming v. State, 271 Ga. 587, 589 (523 SE2d 315) (1999). “The doctrine

of separation of powers is an immutable constitutional principle which must be

strictly enforced. Under that doctrine, statutory construction belongs to the courts,




      3
         After being invited by this Court to file an appellate brief, the State filed a
brief in which it generally agreed with Eller’s interpretation of the statutory law.

                                           4
legislation to the legislature. We can not add a line to the law.” (Citation and

punctuation omitted.) State v. Fielden, 280 Ga. 444, 448 (629 SE2d 252) (2006).

      OCGA § 17-10-14 (a) explicitly and unequivocally provides that, upon turning

17 years old, a juvenile in DJJ custody who was sentenced in superior court as an

adult “shall be transferred to the Department of Corrections to serve the remainder

of the sentence.” In passing OCGA § 49-4A-9 (e), the Georgia Legislature authorized

the sentencing court to review and reassess a juvenile’s case as his or her transfer date

approaches in order to consider whether to impose an alternative disposition.

Pursuant to the express language of that statute, to the extent that the superior court

reviewed Eller’s case and determined that an alternative disposition was warranted,

the judge was authorized to: place him on probation, reduce his sentence, allow his

transfer to the Department of Corrections, or fashion “any other determination

authorized by law.” Ordering that Eller remain in DJJ custody until he reaches 21

years of age, however, was neither authorized by OCGA § 49-4A-9 (e) or any other

provision of Georgia law.

      Were we to construe OCGA § 49-4A-9 (e) in the manner proposed by Eller, it

would render meaningless the express statutory requirement that any alternative

determination imposed by the sentencing court otherwise be “authorized by law.”

                                           5
This we cannot do. See Chatman v. Findley, 274 Ga. 54, 55 (548 SE2d 5) (2001);

Ramos-Silva v. State Farm Mut. Ins. Co., 300 Ga. App. 699, 701 (686 SE2d 345)

(2009). Our conclusion is further buttressed by the fact that when passing the Juvenile

Code, the legislature expressly provided that a child adjudicated in juvenile court to

having committed a similar felonious act could be detained in DJJ custody until the

age of 21. See OCGA § 15-11-602 (g). “We must assume, in the absence of evidence

to the contrary, that these distinctions are intended by the General Assembly, and

construe them as written.” (Footnote omitted.) State Ethics Commr. v. Moore, 214 Ga.

App. 236, 239 (447 SE2d 687) (1994). And while we agree with the dissent that

OCGA § 49-4A-9 (b) provides the superior court broad discretion to modify its orders

for the welfare of “any child” subject to its jurisdiction, the plain language of

subsection (e) limits that discretion once that child becomes 17 years of age.

      Judgment reversed. Miller, P. J., Ellington, P. J., Boggs, Branch, McMillian,

and Mercier, JJ., concur. Barnes, P. J., and McFadden, J., dissent.




                                          6
 A16A0526. GEORGIA DEPARTMENT OF JUVENILE JUSTICE

       v. DANIEL LEE ELLER.



      BARNES, Presiding Judge.

      I respectfully dissent to the majority’s opinion because construing OCGA § 17-

10-14 to remove the sentencing court’s discretion to exercise jurisdiction over Eller

until he reaches age 21 would render OCGA § 49-4A-9 meaningless. A cardinal rule

of statutory construction is that “the courts shall look diligently for the intention of

the General Assembly.” OCGA § 1-3-1 (a). This court will not construe a statute so

as to render any portion of it meaningless. Sikes v. State, 268 Ga. 19, 21 (2) (485

SE2d 206) (1997). “All parts of a statute should be harmonized and given sensible

and intelligent effect, because it is not presumed that the legislature intended to enact

meaningless language.”(Citations omitted.) J. Kinson Cook, Inc. v. Weaver, 252 Ga.

App. 868, 870 (556 SE2d 831) (2001).

      OCGA § 17-10-14 (a) provides that

      in any case where a person under the age of 17 years is convicted of a
      felony and sentenced as an adult to life imprisonment or to a certain
      term of imprisonment, such person shall be committed to the
      Department of Juvenile Justice to serve such sentence in a detention
      center of such department until such person is 17 years of age at which
      time such person shall be transferred to the Department of Corrections
      to serve the remainder of the sentence.


Yet OCGA § 49-4A-9 (e) authorizes the sentencing court to review the case once the

child is 17 years of age and determine if the child “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.” Likewise OCGA § § 49-4A-9 (b) provides that

      [a]ny 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.


      Moreover, 49-4A-9 (c), provides that the final judgment is subject to

modification and that the sentencing court shall “shall review the case and make such


                                           2
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.”

      The majority proposes that the OCGA § 49-4A-9 (e) authorizes the sentencing

court to only make determinations “authorized by law” and that remaining in DJJ

custody is not authorized by law per the express language in OCGA § 17-10-14 (a)

mandating the automatic transfer from DJJ custody upon turning 17 years old. The

majority, however, fails to reconcile why any review by the sentencing court would

be permitted per OCGA § 49-4A-9 court once a juvenile turned 17 if transfer to the

Department of Corrections was an unequivocal operation of law. “We must presume

that the Legislature’s failure to include . . . limiting language was a matter of

considered choice.” Transp. Ins. Co. v. El Chico Restaurants, Inc., 271 Ga. 774, 776

(524 SE2d 486) (1999) This legislation clearly contemplates that a sentencing court

might retain jurisdiction over a juvenile until the age of 21. See OCGA § 49-4A-8 (k).

      I would affirm the trial court’s order directing that Eller remain in DJJ custody

until the age of 21. Accordingly, I dissent from the majority’s opinion.



      I am authorized to state that Judge McFadden has joined in this dissent.




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