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In The Interest of S. M.

The minor child's prior adjudication could not be used to render his present act a designated felony since he was not represented by counsel at the prior hearing and did not knowingly and voluntarily waive his right to counsel.

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S. M., a minor, appeals the juvenile court’s dispositional order following his adjudication of delinquency on several counts, including one act which, if committed by an adult, would constitute the crime of theft by taking a motor vehicle. After determining that this was S. M.’s second adjudication of delinquency for motor-vehicle theft, a designated felony act under OCGA § 15-11-63 a 2 E, the juvenile court conducted a dispositional hearing and imposed restrictive custody pursuant to OCGA § 15-11-63 b. S. M. argues, inter alia, that the juvenile court erred in adjudicating him as a designated felon because he did not knowingly and voluntarily waive his right to counsel in the prior adjudication. For the reasons set forth infra, we vacate the disposition order and remand this case to the juvenile court for the entry of a new disposition order.

In pertinent part, the designated felony statute, OCGA § 15-11-63, defines a “designated felony act” as an act which constitutes “a second or subsequent violation of Code Sections 16-8-21 through 16-8-9, relating to theft, if the property which was the subject of the theft was a motor vehicle.”2 Designated felony acts are those which the General Assembly has deemed serious enough to authorize the juvenile court, after conducting a hearing and making certain statutory findings of fact, to confine the juvenile to restrictive custody.3

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