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State v. Neal

Court of Appeals of Oregon

January 29, 2014

STATE OF OREGON, Plaintiff-Respondent,
v.
BRIAN LEE NEAL, Defendant-Appellant

Argued and Submitted: September 27, 2013.

Umatilla County Circuit Court. CF090166. Lynn W. Hampton, Judge.

David O. Ferry, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Karla Ferrall, Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Before Armstrong, Presiding Judge, and Nakamoto, Judge, and Egan, Judge.

OPINION

Page 665

[260 Or.App. 754] EGAN, J.

Defendant moved to dismiss a criminal indictment after the state inadvertently failed to bring him to trial within the 90-day statutory period that was triggered by his request for a speedy trial. Defendant, who was incarcerated at all relevant times, contended that the state's failure to try him within 90 days required the trial court to dismiss the criminal proceeding under ORS 135.760 to 135.765, set out below. The trial court concluded that there was good cause for the failure to try defendant within the statutory period and denied the motion. Defendant was convicted following a bench trial; he appeals the resulting judgment of conviction, assigning error to the trial court's denial of his motion to dismiss. Defendant also assigns error to the trial court's imposition of an upward departure sentence on two counts of conviction. We write only to address defendant's speedy trial assignment of error, and, for the following reasons, we reverse and remand for entry of a judgment of dismissal.

The applicable statutes in this case are ORS 135.760, ORS 135.763, and ORS 135.765. ORS 135.760 provides:

" (1) Any inmate in the custody of the Department of Corrections or of the supervisory authority of a county pursuant to a commitment under ORS 137.124(2) against whom there is pending at the time of commitment or against whom there is filed at any time during imprisonment, in any court of this state, an indictment, information or criminal complaint charging the inmate with the commission of a crime, may give written notice to the district attorney of the county in which the inmate is so charged requesting the district attorney to prosecute and bring the inmate to trial on the charge forthwith.
" (2) The notice provided for in subsection (1) of this section shall be signed by the inmate and set forth the place and term of imprisonment. A copy of the notice shall be sent to the court in which the inmate has been charged by indictment, information or complaint."

ORS 135.763 provides:

Page 666

" (1) The district attorney, after receiving a notice requesting trial under ORS 135.760, shall, within 90 days [260 Or.App. 755] of receipt of the notice, bring the inmate to trial upon the pending charge.
" (2) The court shall grant any reasonable continuance with the consent of the defendant. Notwithstanding the defendant's lack of consent, the court may grant a continuance on motion of the district attorney or on its own motion, for good cause shown. The fact of imprisonment is not good cause for the purposes of this subsection."

Finally, ORS 135.765 provides:

" (1) On motion of the defendant or the counsel of the defendant, or on its own motion, the court shall dismiss any criminal proceeding not brought to ...

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