Argued and Submitted November 26, 2013
Washington County Circuit Court. D0006772T. Donald R. Letourneau, Judge.
Elizabeth G. Daily, Deputy Public Defender, argued the cause for appellant. With her on the briefs was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Michael A. Casper, Deputy Solicitor General, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Doug M. Petrina, Senior Assistant Attorney General.
Before Ortega, Presiding Judge, and Sercombe, Judge, and Hadlock, Judge.
[263 Or.App. 264]
Defendant appeals a judgment of conviction for driving while suspended (DWS), ORS 811.182(4), raising three assignments of error. We reject defendant's second and third assignments of error without discussion. In his first assignment of error, defendant argues that the trial court erred when it denied his motion to dismiss on statutory speedy trial grounds. As explained below,
the record suggests that the trial court applied an incorrect legal standard when it denied defendant's motion to dismiss. Because application of the correct legal standard would require the trial court to make factual findings that it appears not to have already made, either explicitly or implicitly, we vacate defendant's conviction and remand with instructions.
On August 16, 2000, a police officer issued defendant a citation for DWS. That citation directed defendant to appear in court on August 29, 2000. Defendant did not appear in court on the scheduled date, and the court issued a warrant. The state made an unsuccessful attempt to serve the warrant in 2003 before successfully serving it in July 2011. Defendant filed a pretrial motion to dismiss under former ORS 135.747 (2011), repealed by Or. Laws 2013, ch 431, § 1, arguing that " there has been an unreasonable delay between the charging of these offenses and trial, which the defendant did not cause and to which he did not consent." At the 2011 hearing on that motion, defendant testified that he had spoken to a court clerk the day before his scheduled
[263 Or.App. 265] August 2000 court appearance and believed he was not required to appear the next day because charges had not yet been filed against him:
" [I]t was the afternoon before the morning where I was supposed to be and I couldn't make it that next day, so I wanted to go down there and appear. And I talked to the clerk, and she said that they had no -- nothing filed, knew no knowledge about it. Because I had my copy of the citation. And she told me that several times previously in the weeks before that, that this had happened several times, and things just didn't get filed.
" And so, I was kind of under the impression at that, that it didn't make it as far as -- I didn't know there was a warrant out on that."
The record shows that the state filed the charges against defendant the day before his scheduled appearance--the same day on which, according to defendant, he had spoken with the court clerk.
At the hearing on defendant's motion, both parties agreed that the citation provided defendant with notice of his obligation to appear in court on August 29, 2000. Their disagreement centered on whether a subsequent event--defendant's interaction with the court clerk--excused his failure to appear for purposes of the statutory speedy-trial analysis. Defendant argued that, under State v. Coulson, 243 Or.App. 257, 258 P.3d 1253 (2011), " there is no per se rule that a Failure to Appear equals consent" ; under the circumstances, he argued, his conversation with the clerk effectively negated the notice of his obligation to appear. The state argued that the conversation with the court clerk was irrelevant because defendant had received actual notice of the hearing from his citation and therefore knowingly failed to appear. According to the state, under State v. Anglin, 227 Or.App. 325, 206 P.3d 193, rev ...