State v. Ramirez-Herrara

The trial court erred in granting a general demurrer based on the sufficiency of the evidence, because in considering a general demurrer, it is the legal sufficiency of the pleading, not the evidence, that is at issue.

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Alberto Ramirez-Herrara was charged with five counts of violating the Georgia Street Gang Terrorism and Prevention Act the “Anti-Gang Act”,1 two counts of obstructing a law enforcement officer,2 two counts of possessing a firearm during the commission of a felony,3 carrying a concealed weapon,4 and two counts of giving false information to a law enforcement officer.5 The trial court granted Ramirez-Herrara’s general demurrer as to the Anti-Gang Act charges Counts 1-5, and the State appeals. We reverse for reasons that follow. 1. At the outset, we address the jurisdictional basis for this appeal.6 OCGA § 5-7-1 a 1 provides that an appeal may be taken by and on behalf of the State of Georgia from the . . . superior courts . . . and such other courts from which a direct appeal is authorized to the Court of Appeals of Georgia and the Supreme Court of Georgia in criminal cases . . . from an order, decision, or judgment setting aside or dismissing any . . . accusation . . . or any count thereof. Here, by granting the demurrer as to the Anti-Gang Act charges, the trial court effectively dismissed those five counts. “When the ruling of the trial court is in substance a dismissal of the indictment, the State may appeal an order dismissing an indictment under OCGA § 5-7-1 a 1. . . .”7 Thus, the order granting the demurrer as to five of the twelve counts is directly appealable under OCGA § 5-7-1 a.8

2. The State argues that the trial court erred by granting Ramirez-Herrara’s general demurrer as to the Anti-Gang Act counts because the indictment was legally sufficient. We agree and reverse.

State v. Ramirez-Herrara

The trial court erred in granting a general demurrer based on the sufficiency of the evidence, because in considering a general demurrer, it is the legal sufficiency of the pleading, not the evidence, that is at issue.

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