In the Interest of E. S.

The delinquency petition failed to satisfy the juvenile's due process rights because it did not set forth an essential element of a count charging the juvenile with violating the Georgia Street Gang Terrorism and Prevention Act.

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The Gwinnett County juvenile court found that E. S. violated OCGA § 16-11-132 possession of a firearm by a minor, OCGA § 16-11-126 carrying a concealed weapon, and OCGA § 16-15-4 the Georgia Street Gang Terrorism and Prevention Act. The court adjudicated E. S. delinquent and, pursuant to OCGA § 15-11-63 a 2 B vii, found that E. S. committed a designated felony and required restrictive custody for a period of 24 months. E. S. appeals, contending he was denied due process of law, that the evidence adduced was insufficient to support his conviction, and that his sentence was excessive. Because the petition failed to charge a violation of the Street Gang Act, E. S. was deprived of due process of law; therefore, we reverse. 1. E. S. contends he was denied due process of law because he did not receive a copy of his delinquency petition until the hearing commenced. Moreover, he contends he could not adequately prepare his defense because the state failed to set forth in the petition the predicate acts constituting the “pattern of criminal gang activity” necessary to prove a violation of the Street Gang Act under OCGA § 16-15-4 a.

a Timeliness. E. S. was entitled to a copy of the petition at least 24 hours prior to the adjudicatory hearing. OCGA § § 15-11-39 b, 15-11-39.1 a. Although the record supports E. S.’s contention that he did not actually receive a copy of the petition until the hearing, it reveals his attorney was aware of its contents because he had prepared several “housekeeping motions” based upon it. More importantly, however, E. S. voiced no objection to receiving the petition untimely, and made no motion for a continuance on the basis that he was unprepared for trial, but instead went forward. E. S.’s election to proceed with the hearing impliedly waived proper service of the petition. See Fulton County Detention Center v. Robertson , 249 Ga. 864 295 SE2d 101 1982.

In the Interest of E. S.

The delinquency petition failed to satisfy the juvenile's due process rights because it did not set forth an essential element of a count charging the juvenile with violating the Georgia Street Gang Terrorism and Prevention Act.

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