Mosby v. State ( 2013 )

DILLARD, Judge,

dissenting.

I respectfully dissent. The record reflects that both Mosby and the State presented oral argument before the trial court, but Mosby specifically requested an evidentiary hearing on his special demurrer, positing that mere arguments to the court “would not be sufficient to constitute evidence before the Court.” But instead of holding an evidentiary hearing as Mosby requested, the trial court summarily denied his special demurrer. In doing so, the trial court erred; and the majority likewise errs in concluding that the indictment is subject to the special demurrer prior to an evidentiary hearing being held by the trial court.¹⁰ Accordingly, I would vacate the trial court’s order and remand for an evidentiary hearing on Mosby’s special demurrer.¹¹

I am authorized to state that Judge McMillian joins in this dissent.

Decided February 4, 2013. Corso, Kennedy & Campbell, Arturo Corso, for appellant. Daniel J. Porter, District Attorney, Marlene S. Zekser, Assistant District Attorney, for appellee.

10 See State v. Layman, 279 Ga. 340, 341 (613 SE2d 639) (2005) (noting that an “indictment is subject to a special demurrer” only when the “indictment alleges that a crime occurred between two particular dates, and if evidence presented to the trial court shows that the State can reasonably narrow the range of dates during which the crime is alleged to have occurred” (emphasis supplied)).

11 See Moore v. State, 294 Ga. App. 570, 576 (2) (669 SE2d 498) (2008) (vacating denial of special demurrer and remanding for an evidentiary hearing).