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State v. McGee

Court of Appeals of Oregon

January 30, 2019

STATE OF OREGON, Plaintiff-Appellant,
v.
CHARLES BO McGEE, Defendant-Respondent.

          Multnomah County Circuit Court 080343630; John A. Wittmayer, Judge.

          Argued and submitted May 9, 2016

          Joanna L. Jenkins, Assistant Attorney General, argued the cause for appellant. Also on the brief were Ellen F. Rosenblum, Attorney General, and Paul L. Smith, Deputy Solicitor General.

          John Henry Hingson, III, argued the cause and fled the brief for respondent.

          Before Armstrong, Presiding Judge, and Egan, Chief Judge, and Shorr, Judge.

         Case Summary: The state appeals a pretrial order dismissing a 2008 misdemeanor charge against defendant on speedy-trial grounds. Under ORS 135.746, the criminal trial for a misdemeanor must be commenced within two years. However, ORS 135.748 excludes certain time periods from that two-year calculation, including trial continuances that are requested or consented to by the defendant. The question presented in this case is whether a stay requested by defendant and granted by the trial court, which stayed the case pending resolution of a mandamus proceeding in the Supreme Court, falls within that exclusion. Held: The delay caused by the stay during the mandamus proceeding is excluded from the statutory speedy-trial calculation because that stay was requested by defendant and had the effect of continuing the trial date. With that time excluded, defendant would have been brought to trial within two years.

         Reversed and remanded.

         [295 Or.App. 802] ARMSTRONG, P. J.

         The state appeals a pretrial order dismissing on speedy-trial grounds a 2008 charge against defendant for misdemeanor driving under the influence of intoxicants (DUII), ORS 813.010(1). This is the second time we are reviewing a trial court dismissal of this case on speedy-trial grounds. In the first appeal, we concluded that the trial delay was "reasonable" under former ORS 135.747 (2011), repealed by Or Laws 2013, ch 431, § 1, and reversed and remanded. State v. McGee, 255 Or.App. 460, 488, 297 P.3d 531, rev den, 354 Or. 389 (2013) (McGee I). On remand, defendant sought dismissal under the new speedy-trial statute, ORS 135.746. That statute provides that a criminal trial in which the most serious charge is a misdemeanor must be commenced within two years from the date that the state files the charging instrument. ORS l35.746(1)(a). However, ORS 135.748 excludes certain time periods from that two-year calculation. The question presented in this case is whether a stay requested by defendant and granted by the trial court, which stayed the case pending resolution of a mandamus proceeding in the Supreme Court, falls within one of those exclusions. We conclude that it does and, with that time excluded, defendant would have been brought to trial within two years as required by ORS 135.746. Accordingly, we reverse and remand.

         We take the facts, which are largely procedural, from our opinion in McGee I. Defendant was charged by information on March 31, 2008, with misdemeanor DUII. 255 Or.App. at 463. In preparation for a motion to suppress hearing, defendant served a subpoena duces tecum on one of the arresting officers, requiring him to appear at a pre-trial hearing and to bring certain documents with him. The officer appeared but failed to bring most of the requested documents with him. The court continued the hearing for a month, during which time the officer provided the requested documents to defendant. However, defendant asked the trial court to issue a show-cause order to initiate a proceeding to find the officer in contempt of court. Defendant sought a finding of contempt to use in his criminal trial as evidence of the officer's bias. The trial court denied the request, and [295 Or.App. 803] defendant sought mandamus relief from the Supreme Court. Id. at 464-67.

         After the Supreme Court issued an alternative writ and the trial court did not change its ruling, defendant requested a stay of the criminal case pending final resolution of the mandamus proceeding. At the time of defendant's stay request, his trial was set for January 19, 2009. The trial court granted defendant's stay request. In April 2009, because the mandamus proceeding was still pending, the trial court set the case for a status hearing on those proceedings for December 22, 2009, which was later continued to January 27, 2010. Id. at 467-68.

         The Supreme Court ultimately concluded that the trial court had misapplied the law of contempt and, on November 16, 2009, issued a preemptory writ directing the trial court to vacate its order denying defendant's motion to show cause and to reconsider the motion. Id. at 468. On remand, after some procedural issues, the trial court again denied defendant's motion to show cause. See id. at 468-72 (describing the various proceedings and associated dates). The same day as the resolution of the contempt proceeding, April 23, 2010, the trial court reset trial for June 30, 2010, which was later reset for July 14, 2010. Id. at 472.

         Defendant then moved to dismiss the DUII case on speedy-trial grounds under former ORS 135.747 (2011), which the trial court granted. The state appealed that dismissal order, and we reversed and remanded, concluding that the delays in the proceeding were reasonable. McGee I, 255 Or.App. at 488.

         After we decided McGee I, the legislature enacted new speedy-trial statutes. See Or Laws 2014, ch 73, §§ 1-4. On remand, defendant moved to dismiss the case under the new statute, ORS 135.746. The trial court granted that motion because, after excluding days under ORS 135.748, the trial court determined that the delay was 903 days, which was more than the two years allowed by ORS 135.746. As relevant to this appeal, the trial court concluded that it would not exclude 337 days from the calculation, which represented the time that trial was delayed during the pendency [295 Or.App. 804] of the mandamus proceeding.[1] The state now appeals that dismissal. The issue on appeal reduces to whether the trial court erred when it concluded that ORS 135.748 does not exclude from the speedy-trial calculation under ...


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