State v. Emery

840 P.2d 95, 115 Or. App. 655, 1992 Ore. App. LEXIS 1952

Opinions

EDMONDS, J.

Defendant appeals his conviction for illegal possession of a game mammal, assigning as error the trial court’s denial of his motion to dismiss because of the delay in bringing him to trial. We affirm.

On October 31, 1988, defendant was cited for illegally possessing a game mammal during the closed season. On September 7, 1990, he moved to dismiss the complaint, arguing that he had been denied his right to a speedy trial under ORS 135.747 and Article I, section 10, of the Oregon Constitution. After the court denied the motion, a jury convicted defendant.

ORS 135.747 provides:

“If 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.”

In State v. Jackson, 228 Or 371, 377, 365 P2d 294 (1961), the court held that former ORS 134.120,¹ the predecessor of ORS 135.747, has

“substantially the same meaning and, therefore, that the tests heretofore announced by this court which are to be applied in determining whether an accused has been deprived of his right to a speedy trial under the constitution are likewise the tests under the statute.”

In State v. Mende, 304 Or 18, 22, 741 P2d 496 (1987), the court explained the factors to be considered in determining whether an accused has been deprived of his right to a speedy trial under Article I, section 10. They are the length of delay, the reasons for the delay and the resulting prejudice, if any, to the defendant. The length of delay serves as a triggering device if the delay is substantially greater than the average time to bring an accused to trial. Here, the 24-month delay triggers further inquiry. The record discloses that the reasons for the delay include on-going plea negotiations from November, 1988, to the spring of 1990, a conflict of interest requiring a transfer of the case from one justice court to another, and a transfer of the case from justice court to district court when the justice court in Lake County was discontinued.

Defendant makes no claim of actual prejudice.² Rather, he argues, “ORS 135.747 does not require that a defendant be prejudiced by an unreasonable delay, only that he not have consented to it.” We disagree. One kind of prejudice is “constitutional prejudice,” such as prejudice to the accused’s ability to defend or when dismissal is invoked against a purposeful delay by the government. See Haynes v. Burks, 290 Or 75, 82, 619 P2d 632 (1980). A second kind of prejudice is “nonconstitutional” prejudice, which includes “pretrial incarceration” or “the anxiety and concern of the accused.” State v. Mende, supra, 304 Or at 22.³

Here, the delay is not of such length that it is presumptively prejudicial so as to render proof of actual prejudice unnecessary; neither was the delay wilfully caused by the state for an improper purpose. Because defendant does not argue that he has suffered any prejudice from pretrial incarceration or anxiety and concern, we hold that, under the circumstances, ORS 135.747 and Article I, section 10, were not violated. See also State v. Chinn, 115 Or App 662, 840 P2d 92 (1992).

Defendant’s other assignment does not require discussion.

Affirmed.

Footnotes

1

Former ORS 134.120 read:

“If a defendant indicted for a crime, whose trial has not been postponed upon his application or by his consent, is not brought to trial within a reasonable period of time, the court shall order the indictment to be dismissed.”

Former ORS 134.120 was renumbered ORS 135.747 in 1973 and amended by Oregon Laws 1973, chapter 836, section 204.

2

In State v. Ivory, 278 Or 499, 507, 564 P2d 1039 (1978), the court identified the kinds of actual prejudice that may result from pretrial delay for purposes of analysis under Article I, section 10: (1) pretrial incarceration, (2) the anxiety and concern of the accused and (3) impairment of the defense.

3

The dissent cites State v. Dykast, 300 Or 368, 712 P2d 79 (1985), and Haynes v. Burks, 290 Or 75, 619 P2d 632 (1980), in support of its position. In Dykast, the defendant did not invoke the provisions of ORS 135.747, and the court said, “Accordingly, we make no determination whether a violation of ORS 135.747 has been established.” 300 Or at 374. (Footnote omitted.) In Haynes, the plaintiff brought a habeas corpus proceeding, because she had been held in jail awaiting trial for two and one-half years. The court noted that dismissal is the only possible remedy when the prejudice resulting from the delay is to the accused’s ability to defend. However, it held that that remedy was unwarranted, because the evidence failed to establish that the delay had adversely affected the plaintiff’s ability to defend the criminal charge. The opinion in Haynes says that, “shortofthe kind of prejudice* * * [that] would require dismissal,” remedies include dismissal without prejudice under ORS 135.747. From that language, the dissent concludes that a showing of prejudice is not a requirement for dismissal under the statute. That conclusion is wrong. The ‘ ‘kind of prejudice’ ’ referred to in Haynes is constitutional prejudice. Haynes does not negate the requirement of nonconstitutional prejudice under ORS 135.747. See State v. Mende, supra, 304 Or at 22.