Argued and Submitted February 21, 2013.
Crook County Circuit Court. MI080265. Daniel Joseph Ahern, Judge.
Anne Fujita Munsey, Senior Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Karla H. Ferrall, Assistant Attorney General, argued the cause for respondent. With her on the brief were John R. Kroger, Attorney General, and Anna M. Joyce, Solicitor General.
Before Ortega, Presiding Judge, and Sercombe, Judge, and De Muniz, Senior Judge.
[263 Or.App. 227] SERCOMBE, J.
Following a bench trial, the trial court imposed a punitive contempt sanction. ORS 33.065. Defendant appeals, assigning error
to the trial court's denial of his motion to dismiss for lack of a speedy trial under former ORS 135.747 (2011), repealed by Or. Laws 2013, ch 431, § 1. On review for errors of law, State v. Johnson, 339 Or. 69, 82-87, 116 P.3d 879 (2005), we reverse and remand for entry of a judgment of dismissal.
Because this case proceeded to trial along with three misdemeanor cases brought against defendant--one of which is the subject of another appeal we decide today in State v. Straughan (A148221), 263 Or.App.
242, 328 P.3d 737 (May 29, 2014)--we set out the pertinent facts that relate to those cases. On March 22, 2008, police were called to a fight outside a tavern involving defendant and at least three alleged victims. One of those alleged victims told the police that, in 2007, defendant had a fight with the victim's mother, C, and had injured the mother's hand. Defendant was arrested that night, and he signed a security release agreement that he would have no contact with C.
On April 4, 2008, in case MI080193, defendant was charged by information with one count of assault in the fourth degree. In that case, defendant's security release agreement was modified to allow third-party contact for the purpose of discussing defendant and C's jointly owned business. On April 21, 2008, defendant wrote a letter to C discussing their business; she received the letter a few days later.
On May 6, 2008, in case MI080237, defendant was charged by information with two counts of fourth-degree assault and two counts of harassment relating to the 2007 incident with C. On May 20, 2008, in case MI080265, defendant was charged with one count of contempt of court for violating the security release agreement. On June 17, 2008, at a status hearing, defendant indicated that he would be filing a motion to consolidate all three pending cases. On June 25, 2008, however, defendant filed a motion to consolidate cases MI080193 and MI080237, but no motion to [263 Or.App. 228] consolidate appears in the contempt case. The trial court granted that motion, but soon after, on August 15, 2008, the court granted the state's motion to dismiss the charge in MI080193. Thus, as of that date, the two remaining cases--this case for contempt (MI080265) and the case for fourth-degree assault and harassment (MI080237)--were proceeding separately. At an August 15, 2008, status hearing, the contempt case was set for trial on August 21, 2008. Defendant requested a setover of that trial date, and a status hearing was set for November 4, 2008.
Before that hearing, however, two new cases were filed. On August 28, 2008, in case MI080446, defendant was charged by information with driving under the influence of intoxicants (DUII) in relation to an arrest earlier that month. On September 23, 2008, in a separate case (MI080489), defendant was charged by information with two counts of menacing and one count of harassment. Those charges stemmed from the fight on March 22, 2008.
By the time of the November 4, 2008, status hearing, then, there were four cases pending against defendant in Crook County Circuit Court: one case related to the 2007 incident (MI080237, " the assault case" ); one case related to the 2008 fight (MI080489, " the menacing case" ); this case for contempt (MI080265); and the DUII case (MI080446). At the hearing, defense counsel stated that " [w]e are here just to get a trial date." The court asked defense counsel which of three cases--the contempt case, the menacing case, or the DUII case--was " primary for trial," and defense counsel responded that she would leave that decision to the district attorney. The district attorney noted that the assault case was already set for trial in December 2008 and stated that, after that case, the state would try the menacing case. The trial court scheduled the menacing case for trial in January 2009 and ordered that the contempt and DUII [263 Or.App. 229] cases would begin to
track with the menacing case until it was " ...