290 P.3d 305
Or. Ct. App.2012Background
- Defendant was arrested on July 25, 2004 and charged with misdemeanor DUII (ORS 813.010).
- Glendale Justice Court convicted him by jury on February 1, 2005; he appealed to the circuit court for trial de novo.
- Circuit court proceedings were repeatedly delayed by defense continuances and counsel changes; fifth trial date was January 6, 2009.
- Before that fifth date, defendant moved for dismissal under ORS 135.747; the court denied the motion on April 13, 2009.
- Defendant renewed the ORS 135.747 motion on August 19, 2009; trial began August 26, 2009 and he was convicted after a two-day trial.
- The central issue was whether ORS 135.747 applies to a second circuit-court trial obtained on appeal after a justice court conviction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does ORS 135.747 apply to a second circuit trial following justice court conviction? | Garner controls; second trial is a retrial, not a new first trial. | 135.747 governs pretrial delay for the entire proceedings, including the second trial. | No; ORS 135.747 does not regulate the timing of the second circuit trial. |
Key Cases Cited
- State v. Garner, 253 Or App 64 (Or. App. 2012) (does not apply 135.747 to retrials following a mistrial)
- State v. Dodson, 226 Or 458 (Or. 1961) (second trials after appeal; speedy-trial context inapplicable to retrials)
- State v. Emery, 318 Or 460 (Or. 1994) (purpose of 135.747 is to prevent languishing cases awaiting prosecutorial action)
- State v. Garcia/Jackson, 207 Or App 438 (Or. App. 2006) (interpretation of 135.747 in context of delays and attendant circumstances)
- State v. Stacey, 25 Or App 97 (Or. App. 1976) (53.090 controls trial in circuit court; rulings not binding from lower court)
- State v. Knighten, 236 Or 634 (Or. 1964) (53.090 meaning of 'as if originally commenced' in circuit trial)