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In re Application of Thurman Price for A Writ of Habeas Corpus Price

March 28, 1973

IN THE MATTER OF THE APPLICATION OF THURMAN PRICE FOR A WRIT OF HABEAS CORPUS PRICE, PLAINTIFF,
v.
ZARBANO, DEFENDANT



Original proceeding in habeas corpus.

Michael O. Whitty, Coos Bay, for plaintiff.

Richard L. Barron, Assistant District Attorney, Coos Bay, for defendant.

Howell, Justice. Denecke, Presiding Justice, and Holman, Tongue and Bryson, Justices.

Howell

This is an original petition for a writ of habeas corpus. Plaintiff seeks an order releasing him from the Coos County jail on the grounds that his trial was not commenced within 60 days from the time of his arrest.

ORS 136.290 provides:

"Limitation on time defendant held prior to trial; release of defendant if limit exceeded. (1) Except as provided in ORS 136.295, a defendant shall not remain in custody pending commencement of his trial more than 60 days after the time of his arrest unless the trial is continued with his express consent.

"(2) If a trial is not commenced within the period required by subsection (1) of this section, the court shall release the defendant on his own recognizance, or in the custody of a third party, or upon such bail as the defendant can afford, or upon whatever additional reasonable terms and conditions the court deems just."

The parties are agreed on the following facts.

On December 22, 1972, the plaintiff was arrested and charged with kidnapping in the first degree and rape in the first degree, and has been incarcerated in the Coos County jail since his arrest. Bail was set at $30,000. On January 30, 1973, he was indicted on counts of kidnapping, rape, and sodomy. Plaintiff entered a plea of not guilty, and bail was again set at $30,000.

On February 28, 1973, plaintiff filed a motion requesting release from custody on the grounds that he had been held in custody without trial in excess of 60 days in violation of ORS 136.290 above. The motion was denied by the circuit court of Coos County on March 9, 1973. Previously, on March 1, 1973, the circuit court reduced plaintiff's bail to $5,000.

The parties agree that the sole issue presented to this court is the interpretation of ORS 136.290. The plaintiff contends that, as he was not tried on the charges within 60 days of his arrest, he must be released from custody. The defendant contends that the 60 days provided for in ORS ...


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