☢ test - Í

State v. Hill, 321 Ga.App. 759, 743 S.E.2d 448 (May 14, 2013). In prosecution for battery and simple battery, State couldn’t appeal trial court’s order allowing defendant to change guilty plea to no contest. Contrary to State’s argument, trial court’s order didn’t amount to dismissal of other charges, which had already been nolle prossed with State’s consent. “The order at issue in this appeal merely vacates Hill’s guilty plea and substitutes a no contest plea in its place, and the State has no right to appeal from such an order. ‘In OCGA § 5–7–1(a), the General Assembly has set forth only a limited right of appeal for the State in criminal cases. If the State attempts an appeal outside the ambit of OCGA § 5–7–1(a), the appellate courts do not have jurisdiction to entertain it.’ (Citations and punctuation omitted.) State v. Outen, 289 Ga. 579, 580 (714 S.E.2d 581) (2011). Nothing in that statute allows the State to appeal directly from an order entering, vacating or substituting a plea. Accordingly, we have no jurisdiction to consider the State's appeal.” State v. Johnson, 292 Ga. 409, 738 S.E.2d 86 (February 4, 2013). State couldn’t appeal superior court’s transfer of 15- year old’s murder prosecution to juvenile court, based upon failure to indict within 180 days, pursuant to OCGA § 17-7-50.1(b). Types of orders appealable by State are enumerated in OCGA § 5-7-1(a). “When the General Assembly enacted § 17–7–50.1 in 2006, … it did not amend or reference § 5–7–1 to specifically authorize the State to appeal transfer orders entered pursuant to § 17–7–50.1(b).” Contrary to State’s argument, a transfer under 17-7-50.1(b) does not amount to “‘an order ... setting aside or dismissing an[ ] indictment,’ which the State may appeal under § 5–7–1(a)(1).” Leitch v. Fleming, 291 Ga. 669, 732 S.E.2d 401 (October 15, 2012). Reversing trial court and 310 Ga.App. 717(1), 713 S.E.2d 900 (2011), district attorney couldn’t seek declaratory judgment against magistrates for refusing to find probable cause to bind over criminal charges to grand jury based on hearsay alone. Declaratory judgment was improper because there was no “actual controversy” between the DA and the magistrates; “[a] judge acting in an official capacity in a criminal case is not an adverse party with interests antagonistic to those of the State or the defendant, but instead serves in the role of a neutral decision maker.” Despite DA’s attempt to cast he challenge as a civil action, “we again conclude that the underlying decisions that are being challenged in this declaratory judgment action are evidentiary rulings in criminal cases that are not subject to appeal. … The State does not have the right to directly appeal the judges' probable cause decisions and is attempting in this case to circumvent the appellate procedure for seeking review of criminal rulings. We conclude the State cannot indirectly do what it does not have the authority to do directly. See Howard v. Lane, 276 Ga. 688, 689 (581 S.E.2d 1) (2003) (dismissing district attorney's appeal of denial of a petition for writ of prohibition because State did not have ability to appeal ruling in criminal case).” “Although the district attorney cannot appeal the probable cause rulings of the magistrate judges, the State is not without a remedy. On a case-by-case basis, the district attorney has the option of presenting additional evidence to the same judge, initiating a new prosecution for the same offense, or seeking an indictment before the grand jury. See Johnson v. State, 242 Ga. 822(4) (251 S.E.2d 563) (1979) (grand jury is not bound by charge stated in magistrate's bindover order in determining offenses that have been committed); Wells v. Stynchcombe, 231 Ga. 199 (200 S.E.2d 746) (1973) (dismissal of charges based on lack of probable cause does not bar subsequent indictment). See generally 4 Wayne R. LaFave et al, Criminal Procedure, § 14.3(c) (3 rd ed., 2011) (describing ways that prosecutors seek to overcome a magistrate's dismissal at a preliminary hearing).” “Moreover, the magistrate judges concede that the new Evidence Code will eliminate the uncertainty that they have claimed exists. Effective January 1, 2013, OCGA § 24–1–2(d)(1) expressly provides, ‘In criminal commitment or preliminary hearings in any court, the rules of evidence shall apply except that hearsay shall be admissible.’ See also OCGA § 17–7–28 (‘The court of inquiry shall hear all legal evidence submitted by either party.... The rules of evidence shall apply except that hearsay shall be admissible.’).” State v. Outen, 289 Ga. 579, 714 S.E.2d 581 (June 27, 2011). Reversing 304 Ga.App. 203, 695 S.E.2d 654 (2010), Court of Appeals erred by taking jurisdiction of appeal by State from trial court’s order granting demurrer on one count of two- count indictment. “The trial court's order dismissing Count One of the indictment is not a final order; Count Two remains in the trial court. Accordingly, by the plain terms of OCGA § 5–7–2, a certificate of immediate review was required.” Disapproves other contrary Court of Appeals decisions: State v. Ramirez–Herrara, 306 Ga.App. 878, 879(1) (703 S.E.2d 429) (2010); State v. Barrett, 215 Ga.App. 401, 402 (n. 1) (451 S.E.2d 82) (1994); and State v. Tuzman, 145 Ga.App. 481, 482(1) (243 S.E.2d 675) (1978). Accord, State v. Ramirez-Herrara , 315 Ga.App. 635, 727 S.E.2d 253 (April 13, 2012); State v. Hill , 321 Ga.App. 679, 742 S.E.2d 497 (April 30, 2013) (2012 amendment to OCGA § 5-7-2(b)(2), authorizing direct appeal by State, by its express terms is only applicable to offenses committed on and after July 1, 2012); State v. Green , 331 Ga.App. 107, 769 S.E.2d 804 (March 11, 2015). State v. Smith, 308 Ga.App. 345, 707 S.E.2d 560 (March 10, 2011). In defendant’s prosecution for robbery by force and kidnapping, trial court erred in granting motion to suppress witness identification evidence (both in- and out-of-court) prohibiting State from presenting evidence as punishment for perceived prosecutorial dilatoriness. State’s right to