289 P.3d 351
Or. Ct. App.2012Background
- State filed misdemeanor DUII complaint Sept 1, 2006; first trial June 6, 2007 ended in mistrial.
- Trial court dismissed on former jeopardy after Garner I; State timely appealed the dismissal.
- Appellate timeline: Garner I decision issued March 31, 2010; Supreme Court review denied; judgment affirmed Aug 27, 2010.
- Retrial was scheduled for Dec 9, 2010; defendant moved to dismiss Nov 23, 2010 on statutory speedy trial grounds.
- Trial court held about 42 months of delay were attributable to the state; concluded the delay was excessive and dismissed.
- Court reverses, holds defendant was brought to trial in June 2007 (commencement of the trial), so statutory speedy-trial dismissal was improper; constitutional issues discussed but not decided for prejudice today.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| When is a defendant ‘brought to trial’ under ORS 135.747 after a mistrial? | State contends delays from Garner I appeal may count. | Adams II governs overall reasonableness; post-mistrial timing matters. | Brought to trial when trial commenced; retrial after mistrial does not invalidate ORS 135.747. |
| Was the delay from complaint to original June 2007 trial reasonable under Glushko/Little? | Delays largely due to routine appellate/workload; reasonable. | Significant appellate delay and pretrial appeals render period unreasonable. | Delay attributable to the state (about 7.5 months) was reasonable; no statutory dismissal. |
| Does the pretrial systemic delay create constitutional speedy-trial violation? | Pretrial delay may implicate constitutional rights. | Constitutional prejudice must be shown; not addressed on appeal. | Constitutional issues not decided here; prejudice not required for statutory ruling. |
Key Cases Cited
- State v. Adams, 339 Or 104 (2005) (Adams II: total period must be ‘reasonable’ in toto; timing after mistrial considered.)
- Adams I, 193 Or App 469 (2004) (Discussed pretrial delays and began approach to ORS 135.747 timing.)
- State v. Cunningham, 232 Or App 135 (2009) (Post-mistrial timing; inconsistent past treatment but cited.)
- State v. Hampton, 152 Or App 742 (1998) (Assessed delay after mistrial; earlier assumption questioned.)
- State v. Emery, 318 Or 460 (1994) (Foundational context for ORS 135.747 purposes.)
- State v. Johnson, 339 Or 69 (2005) (Statutory speedy-trial impact tied to constitutional framework.)
- Garner I, 234 Or App 486 (2010) (Predecessor appellate dismissal that influenced timing decisions.)