In the Interest of M. S.

In May 2005, the Juvenile Court of Baker County adjudicated M. S. delinquent on the charge of child molestation, which M. S. committed when he was sixteen years old. Following a dispositional hearing, the court sentenced M. S. pursuant to OCGA § 15-11-63, which classifies certain offenses as “designated felony” acts. M. S. appeals, contending the trial court erred in sentencing him, because child molestation is not a designated felony under OCGA § 15-11-63. For the following reasons, we agree that the trial court improperly sentenced M. S., vacate the sentence, and remand for resentencing. The record shows the following undisputed facts. On January 24, 2005, a Baker County grand jury indicted M. S. for child molestation, OCGA § 16-6-4 a. Because juvenile courts have exclusive original jurisdiction over child molestation cases brought against juveniles,1 the Superior Court of Baker County transferred the case to the county’s juvenile court. On March 1, 2005, the county solicitor filed a delinquency petition in the juvenile court contending M. S. had committed child molestation.2 The petition also stated that it was being filed “under the Designated Felon Provisions OCGA § 15-11-63 D.” Following a hearing on May 23, 2005, the juvenile court adjudicated M. S. delinquent on a charge of child molestation. During the dispositional portion of the hearing, M. S.’s counsel argued that, because child molestation was not a designated felony under OCGA § 15-11-63, the juvenile court was not authorized to sentence M. S. pursuant to that statute. The court disagreed, stating that “it’s the Court’s opinion that it can sentence M. S. under the Designated Felony Act and the Court is going to do so.” The court then sentenced M. S. as a designated felon.

On appeal, M. S. contends the court was not authorized to sentence him for committing a designated felony because child molestation is not a designated felony act under OCGA § 15-11-63 a 2. OCGA § 15-11-63 a 2 lists the crimes that are considered designated felonies for the purpose of adjudicating a delinquency petition, and child molestation is not included in the list.