§ 15-11-40.1 - Definitions; graduated sanctions; secure detention for children in violation of terms of probation
O.C.G.A. 15-11-40.1 (2010)
15-11-40.1. Definitions; graduated sanctions; secure detention for children in violation of terms of probation
(a) For purposes of this Code section, the term:
(1) "Department" means the Department of Juvenile Justice.
(2) "Graduated sanctions" means:
(A) Verbal and written warnings;
(B) Increased restrictions and reporting requirements;
(C) Community service;
(D) Referral to treatment and counseling programs in the community;
(E) Weekend programming;
(F) Electronic monitoring, as such term is defined in Code Section 42-8-151;
(G) Curfew;
(H) An intensive supervision program; or
(I) A home confinement program.
(3) "Hearing officer" means a department employee or county juvenile probation office employee, as applicable, who has been selected and appointed by the department or county juvenile probation office, as applicable, to hear cases alleging violations of probation for administrative sanctioning. A hearing officer shall not be a probation officer who has direct supervision over the child who is the subject of the hearing.
(4) "Probation management program" means a special condition of probation that includes graduated sanctions.
(5) "Secure probation sanctions program" means secure confinement of seven, 14, or 30 days.
(b) In addition to any other terms or conditions of probation provided for under this chapter, the court may require that children who receive a disposition of probation:
(1) Be ordered to a probation management program; or
(2) Be ordered to a secure probation sanctions program by a probation officer or hearing officer.
(c) Where a child has been ordered to a probation management program or secure probation sanctions program, the court shall retain jurisdiction throughout the period of the probated sentence and may modify or revoke any part of a probated sentence as provided in Code Section 15-11-40.
(d) (1) The department in jurisdictions where the department is authorized to provide probation supervision, or the county juvenile probation office in jurisdictions where probation supervision is provided directly by the county, as applicable, shall be authorized to establish rules and regulations for graduated sanctions as an alternative to judicial modifications or revocations for probationers who violate the terms and conditions of a probation management program.
(2) The department or county juvenile probation office, as applicable, shall not sanction probationers for violations of conditions of probation if the court has expressed an intention in a written order that such violations be heard by the court.
(e) The department or county juvenile probation office, as applicable, shall impose only those restrictions equal to or less restrictive than the maximum sanction established by the court.
(f) The secure probation sanctions program shall be established by the department. Exclusion of a child from a secure probation sanctions program otherwise authorized by this Code section to enter such program shall be mutually agreed upon by the Council of Juvenile Court Judges and the department. The secure probation sanctions program shall be available to the juvenile courts to the extent that each secure facility has capacity for such offenders within its facilities. Prior to reaching full capacity, the department shall inform the various juvenile courts of its capacity constraints.
(g) (1) When requesting the secure probation sanctions program, probation officers supervising a child under a probation management program shall provide an affidavit to the court specifying:
(A) The elements of the child's probation program;
(B) The child's failures to respond to graduated sanctions in the community; and
(C) The child's number of violations and the nature of each violation.
(2) If a probation officer fails to document the violations and specify how the child has failed to complete a probation management program, such child shall be ineligible to enter the secure probation sanctions program.
(3) A child may enter the secure probation sanctions program if ordered by the court and:
(A) The probation officer has complied with the provisions of paragraph (1) of this subsection and the criteria set by the department for entrance into such program and the child has had three or more violations of probation; or
(B) A child in a probation management program and his or her parent or guardian, or a child in such program and his or her attorney, admit to three or more violations of such program and sign a waiver accepting the sanction proposed by the probation officer.
(4) Each new violation of a condition of a probated sentence may result in a child being sentenced to the secure probation sanctions program; provided, however, that if a child is sentenced to the secure probation sanctions program and completes all program components in the seven, 14, and 30 day programs, such child shall be ineligible to attend the secure probation sanctions program for a future violation of a condition of the same probated sentence.
(h) (1) When a violation of a condition of probation occurs, a child may have an administrative hearing conducted by a hearing officer. If the hearing officer determines by a preponderance of the evidence that such child violated the conditions of probation, the probation officer shall be authorized to impose graduated sanctions or a secure probation sanctions program. A child's failure to comply with a sanction imposed under this paragraph shall constitute another violation of probation.
(2) The hearing officer's decision shall be final unless such child files, within five days of the service of such decision, a written demand with the hearing officer for review of such decision. Such demand shall not stay the sanction decision. The hearing officer shall issue a response to such demand within five days of receiving such demand.
(3) If the hearing officer insists on the sanction, such decision shall be final unless the child files an appeal in the court that originally adjudicated the child. Such appeal shall be filed within ten days of the date of the decision of the hearing officer.
(4) The appeal shall first be reviewed by the court upon the record. At the court's discretion, a de novo hearing may be held on the decision. The filing of the appeal shall not stay the sanction decision.
(5) Where the court does not act on the appeal within 15 days of the date of the filing of the appeal, the sanction decision shall be affirmed by operation of law.