State v. Ellis

328 P.3d 720, 263 Or. App. 250, 2014 Ore. App. LEXIS 734
CourtCourt of Appeals of Oregon
DecidedMay 29, 2014
DocketC112084CR; A151823
StatusPublished
Cited by3 cases

This text of 328 P.3d 720 (State v. Ellis) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Ellis, 328 P.3d 720, 263 Or. App. 250, 2014 Ore. App. LEXIS 734 (Or. Ct. App. 2014).

Opinion

SERCOMBE, P. J.

In this criminal case, the trial court granted defendant’s motion to dismiss for lack of a speedy trial based on former ORS 135.747 (2011), repealed by Or Laws 2013, ch 431, § l.1 The state appeals the ensuing judgment. ORS 138.060(1). The state argues that the trial court incorrectly calculated the period of delay and that the correctly calculated period of delay was reasonable. We review for errors of law. State v. Johnson, 339 Or 69, 82-87, 116 P3d 879 (2005); State v. Purdom, 218 Or App 514, 516, 180 P3d 150 (2008). Because we conclude that the delay in bringing defendant to trial was reasonable, we reverse and remand.

Under former ORS 135.747,

“ [i] f a defendant charged with a crime, whose trial has not been postponed upon the application of the defendant or by the consent of the defendant, is not brought to trial within a reasonable period of time, the court shall order the accusatory instrument to be dismissed.”

Thus, after unreasonable delay that a defendant has not applied for or consented to, the defendant is generally entitled to dismissal under former ORS 135.747.

We review a trial court’s decision on a motion to dismiss brought under former ORS 135.747 using a two-step analysis. We first determine the total amount of delay and subtract from that total any periods of delay that occurred “upon the application *** or by the consent of the defendant.” We then determine whether the remaining period of delay was reasonable. State v. Glushko/Little, 351 Or 297, 305, 266 P3d 50 (2011) (citing State v. Davids, 339 Or 96, 100-01, 116 P3d 894 (2005)). When the state takes longer than ordinarily expected to bring a defendant to trial, the circumstances that caused the delay will generally determine whether the delay is reasonable. Davids, 339 Or at 101; Johnson, 339 Or at 88.

[252]*252The parties’ dispute implicates both steps of the statutory speedy trial analysis. As to the total period of delay, the parties disagree about the starting date for that calculation. The total period of delay begins when a defendant is charged and ends on the last date set for trial. See State v. Garcia/Jackson, 207 Or App 438, 444 n 3, 142 P3d 501 (2006). As the Supreme Court has explained, “trial delay becomes an issue when a defendant is charged.” Johnson, 339 Or at 92 (emphasis omitted). In this case, the parties dispute when defendant was “charged” for purposes of the speedy trial analysis. They also disagree about whether the net period of delay in this case — however measured — was reasonable.

The principal facts are largely procedural and undisputed. In December 2010, police officers responded to a report of possible drunk driving, found defendant passed out behind the wheel of his still-warm car, and arrested him. Three criminal cases were initiated, more or less sequentially, charging defendant with crimes in connection with those events.

Case number D110059M: On January 10, 2011, the state filed a complaint charging defendant with misdemeanor driving under the influence of intoxicants (DUII) and three other misdemeanor crimes. The state later became aware that defendant had been convicted of DUII twice within the past 10 years. The state accordingly voluntarily dismissed the complaint in order to charge defendant with felony DUII under ORS 813.011.2 An order of dismissal was filed on April 28, 2011, and entered on May 2, 2011.

Case number C110904CR: On April 29, 2011, the state filed an indictment charging defendant with felony DUII and the same previously charged misdemeanor crimes. Trial was set for several dates, and the parties agree that, except for one 27-day continuance, defendant did not apply for or consent to any period of delay for purposes of former ORS 135.747. In September 2011, the state realized that “the [253]*253language in the indictment was wrong,” and so the state obtained a new indictment in a new case (C112084CR, as described below). In November 2011, the indictment in case number C110904CR was dismissed.

Case number C112084CR: Before the indictment in case number C110904CR was dismissed, on September 26, 2011, the state filed a new indictment charging defendant with the same crimes. Trial was set for November 30, 2011, but, on the call date for that trial, the court reset the trial for March 13, 2012, because no judges were available. Again, on the call date for that trial, the court reset the trial for May 22, 2012, because no judges were available. Defendant moved for dismissal on the ground that the delay bringing him to trial was unreasonable.

The trial court considered defendant to have been “charged with a crime” for purposes of former ORS 135.747 when case number D110059M was initiated by complaint in January 2011. The trial court reasoned, “[W]e’re really looking at the very same case continuing from January 11th, with the same fact pattern continuing from January 11th, 2011, until today.” Accordingly, the total period of delay considered by the trial court was about 16.5 months. The court determined that defendant had consented to a 27-day delay by requesting a continuance and accordingly subtracted 27 days from the total period of delay.3 Concluding that the net period of delay — about 15.5 months — was unreasonable, the court granted defendant’s motion to dismiss.

The state contends that the operative “charge” for purposes of the speedy trial analysis is the September 26, 2011, reindictment. Defendant, however, contends that he was “charged” for purposes of the speedy trial analysis when the complaint was issued on January 10, 2011. Thus, in the [254]*254state’s view, the total period of delay was about eight months; whereas in defendant’s view, the total period of delay was about 16.5 months.

As we elaborate below, we have held that, when one or more accusatory instruments have been dismissed, the speedy trial calculation begins with the latest accusatory instrument; by contrast, we have held that, when the same kind of accusatory instrument in the same case has been amended, the speedy trial calculation begins with the original accusatory instrument. The state contends that, here, several accusatory instruments were filed and dismissed in different cases and, accordingly, we should begin the speedy trial calculation with the latest accusatory instrument. In defendant’s view, on the other hand, it is appropriate to start the speedy trial calculation from a new accusatory instrument only if it is obtained after the old accusatory instrument was dismissed.

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Related

State v. Chelemedos
398 P.3d 415 (Court of Appeals of Oregon, 2017)
State v. Barnes
366 P.3d 1198 (Court of Appeals of Oregon, 2016)
State v. Wendt
341 P.3d 893 (Court of Appeals of Oregon, 2014)

Cite This Page — Counsel Stack

Bluebook (online)
328 P.3d 720, 263 Or. App. 250, 2014 Ore. App. LEXIS 734, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-ellis-orctapp-2014.