291 P.3d 799
Or. Ct. App.2012Background
- Defendant was arrested for DUII on Aug 14, 2007, information issued Aug 15, 2007.
- Trial originally set for Jan 28, 2008, then repeatedly postponed.
- First trial on May 20, 2009 ended in mistrial; reset to Oct 7, 2009.
- Defendant moved for dismissal under ORS 135.747 on Sept 30, 2009.
- Trial court found 18.5 months of delay attributable to state and denied dismissal under ORS 135.750 for other reasons (hung jury, priorities, witness unavailability).
- Court concluded ORS 135.747 Applies to pre-trial delay only and that failure to move before trial waives the right; Garner holding applied to second-trial delays with mistrial.]
- The court affirmed the denial of the motion to dismiss; Bevel v. Gladden and waiver principles noted; ORS 135.747 does not govern second-trial delays.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ORS 135.747 governs delay before a second trial after a prior mistrial | Garner governs pre-trial timing limits | Bevel/waiver principles render untimely filing ineffective | ORS 135.747 applies to pre-trial delay; not to second-trial delay; no error. |
| Whether defendant waived statutory speedy-trial rights by delaying until after trial commenced | Waiver via inaction before trial | Rights were not preserved due to post-trial filing | Waiver applies; failure to object before trial bars dismissal under 135.747. |
| Whether the delay before the first trial was unreasonable and attributable to the state | Significant delay (18.5 months) unreasonable | Some delay due to reasonable factors (hung jury, scheduling, witness unavailability) | Only pre-trial delay matters; court did not err in denying dismissal under 135.747. |
Key Cases Cited
- State v. Garner, 253 Or App 64 (2012) (pre-trial timing; mistrial not within 135.747; applies to first-trial delay as interpreted in Garner)
- Bevel v. Gladden, 232 Or 578 (1962) (waiver of statutory speedy-trial rights by failure to file before trial)
- State v. Emery, 318 Or 460 (1994) (purpose of ORS 135.747 to prevent languishing cases, not prejudice protection)
- State v. Gardner, 233 Or 252 (1963) (dictum on waiver by failing to raise speedy-trial issue prior to trial)
- State v. Johnson, 253 Or App 392 (2012) (applies Garner reasoning to a related appellate context)