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State v. Ellis

Court of Appeals of Oregon

May 29, 2014

STATE OF OREGON, Plaintiff-Appellant,
v.
JAMES LOWELL ELLIS, Defendant-Respondent

Argued and Submitted August 20, 2013

Washington County Circuit Court. C112084CR. Gayle Ann Nachtigal, Judge.

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

Elizabeth Daily, Deputy Public Defender, argued the cause for respondent. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Before Sercombe, Presiding Judge, and Hadlock, Judge, and De Muniz, Senior Judge.

OPINION

Page 721

[263 Or.App. 251] SERCOMBE, P. J.

In this criminal case, the trial court granted defendant's motion to dismiss for lack of a speedy trial based on former ORS 135.747 (2011), repealed by Or. Laws 2013, ch 431, § 1.[1] The state appeals the ensuing judgment. ORS 138.060(1). The state argues that the trial court incorrectly calculated the period of delay and that the correctly calculated period of delay was reasonable. We review for errors of law. State v. Johnson, 339 Or. 69, 82-87, 116 P.3d 879 (2005); State v. Purdom, 218 Or.App. 514, 516, 180 P.3d 150 (2008). Because we conclude that the delay in bringing defendant to trial was reasonable, we reverse and remand.

Under former ORS 135.747,

" [i]f a defendant charged with a crime, whose trial has not been postponed upon the application of the defendant or by the consent of the defendant, is not brought to trial within a reasonable period of time, the court shall order the accusatory instrument to be dismissed."

Thus, after unreasonable delay that a defendant has not applied for or consented to, the defendant is generally entitled to dismissal under former ORS 135.747.

Page 722

We review a trial court's decision on a motion to dismiss brought under former ORS 135.747 using a two-step analysis. We first determine the total amount of delay and subtract from that total any periods of delay that occurred " upon the application * * * or by the consent of the defendant." We then determine whether the remaining period of delay was reasonable. State v. Glushko/Little, 351 Or. 297, 305, 266 P.3d 50 (2011) (citing State v. Davids, 339 Or. 96, 100-01, 116 P.3d 894 (2005)). When the state takes longer than ordinarily expected to bring a defendant to trial, the circumstances that caused the delay will generally determine whether the delay is reasonable. Davids, 339 Or. at 101; Johnson, 339 Or. at 88.

[263 Or.App. 252] The parties' dispute implicates both steps of the statutory speedy trial analysis. As to the total period of delay, the parties disagree about the starting date for that calculation. The total period of delay begins when a defendant is charged and ends on the last date set for trial. See State v. Garcia/Jackson, 207 Or.App. 438, 444 n 3, 142 P.3d 501 (2006). As the Supreme Court has explained, " trial delay becomes an issue when a defendant is charged." Johnson, 339 Or. at 92 (emphasis omitted). In this case, the parties dispute when defendant was " charged" for purposes of the speedy trial analysis. They also disagree about whether the net period of delay in this case--however measured--was reasonable.

The principal facts are largely procedural and undisputed. In December 2010, police officers responded to a report of possible drunk driving, found defendant passed out behind the wheel of his still-warm car, and arrested him. Three criminal cases were initiated, more or less sequentially, charging defendant with crimes in connection with those events.

Case number D110059M: On January 10, 2011, the state filed a complaint charging defendant with misdemeanor driving under the influence of intoxicants (DUII) and three other misdemeanor crimes. The state later became aware that defendant had been convicted of DUII twice within the past 10 years. The state accordingly voluntarily dismissed the complaint in order to charge defendant with felony ...


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