State v. BernsonState v. Bernson
Lead Opinion
The state appeals, pursuant to
There is no disagreement on the operative facts. Oregon sought defendant’s return from the Washington State Penitentiary to stand trial for murder, and he was returned on May 16, 1986. On June 13, 1986, he moved for a continuance and, on July 16, he moved to suppress evidence. The motions were allowed. The state appealed, and we reversed and remanded for the court to reconsider its ruling in the light of our opinion. State v. Bernson,
IAD is designed to encourage expeditious and orderly disposition of outstanding charges and the determination of the proper status of detainers. United States v. Eaddy, 595 F2d 341, 343 (6th Cir 1979). The act allows the person against whom a detainer is lodged to demand the resolution of outstanding charges.
The federal courts, and some state courts, have interpreted “unable to stand trial” to “exclude all those periods of delay occasioned by the defendant.” See, e.g., U.S. v. Taylor, 861 F2d 316, 321 (1st Cir 1988); United States v. Black, 609 F2d 1330, 1334-35 (9th Cir 1979), cert den
Oregon appellate courts have not addressed the tolling provisions under IAD, but they have, under analogous provisions, held that time consumed by defense motions will be excluded in calculating time limitations. See, e.g., Haynes v. Burks,
We also conclude that the state was not required to request a continuance under the provisions of Article IV(c) in order to toll the 120-day period during the appellate process. Article VI(a) provides that the “time periods shall be tolled whenever and for as long as the prisoner is unable to stand trial.”
Under our analysis of the facts in this case, there are three separate events that automatically tolled the 120-day period. The first was when defendant, on June 13, 1986, requested a continuance “until sometime in early September.” Given that his original trial date was set for July 7, defendant was asking for approximately a two-month delay. The exact date that tolling due to that continuance would have ceased is irrelevant because, before the time had begun to run again, defendant filed his motion to suppress. By filing a notice of appeal from the order on that motion, the state continued the tolling until the end of the appellate process on February 16, 1989. By that date, only 28 countable days had passed.
After remand in that appeal, defendant similarly was “unable to stand trial.” His assertion that other crimes evidence should be excluded remained unresolved after our decision. Therefore, the period after February 16, 1989, was a “period of delay occasioned by defendant” that tolled the time. Even defendant’s memorandum to the trial court, submitted with his motion for a hearing after this court’s appellate judgment, recognized that:
“[U]ntil the matter is reconsidered and a new order issued by this court, neither the state, nor the defendant, can effectively prepare for trial until it is clear what evidence will or will not be admitted under the new order of this court pursuant to the directive of the Court of Appeals.”
The resolution of the issues raised by defendant’s motion in limine was necessary in order for all parties to be able properly to prepare for trial. The state did not have an obligation to ensure that defendant’s motion be decided. Contrary to the dissent’s assertion that there was no way for a defendant to get the matter heard, he could have requested that the trial court quickly decide the motion, as he eventually did.
This is not a case where a detainer was used “by prosecutors to exact punishment without having to try a charge which they feel would not result in a conviction.” Note, “Detainers and the Correctional Process,” 1966 Wash U L Q 417, 423. The delays here were occasioned by defendant and do not call for the severe remedy of dismissal, with prejudice, of a murder charge. We hold that the 120-day time limit of
Reversed and remanded.
Notes
“ARTICLE IV
it* * * * *
“(c) In respect of any proceeding made possible by this Article, trial shall be commenced within 120 days of the arrival of the prisoner in the receiving state, but for good cause shown in open court, the prisoner or the counsel of the prisoner being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance.
“ARTICLE VI
“(a) In determining the duration and expiration dates of the time periods provided in Articles III and IV of this agreement, the running of such time periods shall be tolled whenever and for as long as the prisoner is unable to stand trial, as determined by the court having jurisdiction of the matter.”
The dissent cites State v. Crosby,
“Obviously, where delay is caused by the filing of dilatory pleas and motions on behalf of the defendant, he is not entitled to be discharged on account thereof.”217 Or at 406 .
We conclude that, because the delay here was caused by defendant’s motion, he, similarly, is not entitled to have the murder charge dropped on account thereof.
Dissenting Opinion
dissenting.
I agree with the majority’s analysis except the conclusion that on remand, after the first appeal, defendant was “unable to stand trial” because his motion had not been finally resolved and, therefore, that the time in
The appellate process was completed when the appellate judgment was issued on February 16, 1989. The prosecutor, and perhaps the trial court were confused about when the trial court acquired jurisdiction to proceed after the remand. Under
It is the obligation of the prosecutor and the court to bring the matter to trial or to a hearing to resolve pretrial matters. Even though a defendant may file a motion that requires a hearing, there is no way for him to force the matter to be heard timely. State v. Crosby,
A postponement to resolve the state’s appeal includes a reasonable time for the trial court to resolve the matter after the appellate judgment issues. It is probably difficult to determine, with any degree of precision, what a reasonable time would be. However, a three and one-half month delay on the basis of a misunderstanding of the effective date of the appellate judgment certainly cannot be considered reasonable nor be ascribed to defendant’s side of the delay ledger.
The majority appears to put much emphasis on the fact that it was defendant’s motion to exclude evidence that needed final resolution. In fact, the state had the laboring oar to convince the trial court to allow the evidence. Defendant had moved to exclude “other crimes” evidence that the state intended to offer to prove defendant’s identity as the killer in this case. The trial court excluded the evidence on alternate bases, either of which would have been sufficient: It was irrelevant to the issue of identity or, if it were relevant, the prejudicial impact made it inadmissible under OEC 403. We concluded that the evidence was relevant and its probative value strong and, in that light, the trial court would have to reconsider its determination that the evidence was excluded as unduly prejudicial. Although we “reversed” the order excluding the evidence, we did not hold that it was admissible. It was left for the state to convince the trial court that it had erred by excluding the evidence under OEC 403.
As the majority notes, 28 countable days had passed by February 16,1989, when the appellate judgment issued. If the subsequent period was not tolled, the 120-day time limit passed by May 19, 1989, and defendant was entitled to dismissal.
I dissent.