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King v. Mitchell

August 27, 1973

KING, APPELLANT,
v.
MITCHELL, RESPONDENT



Appeal from Circuit Court, Multnomah County. John C. Beatty, Jr., Judge. No. 386-700.

Darrell E. Bewley, Portland, argued the cause for appellant. With him on the brief was Francis F. Yunker, Portland.

William R. Canessa, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Attorney General, and John W. Osburn, Solicitor General, Salem.

Langtry, Judge. Schwab, Chief Judge, and Thornton, Judge.

Langtry

Petitioner appeals from a trial court order denying his petition for a writ of habeas corpus. He contends that the proceedings were defective for technical reasons, and the court should not have reached a decision until a writ of habeas corpus issued and return was made thereto.

Petitioner was arrested on July 24, 1972 on a fugitive warrant from California (ORS 147.130). He refused to waive extradition and was committed for 30 days pending the arrival of a Governor's warrant (ORS 147.150). During this period petitioner was released on recognizance (ORS 147.160). At the end of the 30-day period, the Governor's warrant had not arrived. The matter was continued pursuant to ORS 147.170 until August 31 when the fugitive warrant was dismissed on petitioner's motion because of the delay.

On September 18, 1972 a new warrant for petitioner's arrest was signed by the Governor of Oregon pursuant to ORS 147.070.*fn1 On September 25, 1972 petitioner appeared in court and was served. His attorney stated that he wished to challenge the validity of the warrant and the court gave until October 3, 1972 for the filing of habeas corpus pursuant to ORS 147.100, quoted in part, infra.

No such petition was filed, but instead, petitioner filed another motion to dismiss. The ground was the delay involved in obtaining the warrant. The trial court heard argument on October 17, 1972 and orally announced it would grant the motion.

Later, at a conference held between counsel and the court when findings were presented to be signed, the prosecuting attorney cited new authority to the court for reaching an opposite result and the court ordered reargument.

On December 13, 1972 reargument occurred. At this time petitioner's attorney filed for the first time a petition for a writ of habeas corpus. Counsel argued the merits of whether the previous dismissal of the fugitive warrant or the delay in obtaining the Governor's warrant was ground for releasing petitioner on a writ of habeas corpus. The trial court concluded that no valid challenge to the arrest had been made and ordered that petitioner be held for California. The petition for the writ and the motion for dismissal each was "denied" in the final formal order.

Petitioner claims that the court erred in reaching the merits of his habeas corpus petition on December 13, 1972 (that is, in determining that no valid challenge to the arrest had been made) and that the proper procedure would have been to issue a writ at that time and have a hearing on the merits after the formal return to the writ was filed.

The procedures after petitioner's arrests were prompted by petitioner's motions or petition. It is not very convincing for him to say that he should now benefit from what he claims was erroneous procedure ...


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