This case concerns whether ORS 135.747, the statutory speedy trial provision, applies to a second trial in the same case. Defendant was convicted of misdemeanor driving under the influence of intoxicants, ORS 813.010, by a jury in a Douglas County justice court. He appealed the conviction to the circuit court, obtaining the right to a trial de novo on the criminal charge. Before the second trial, defendant twice moved for a dismissal of the case under ORS 135.747. The trial court denied both motions. Defendant was convicted again following a jury trial in circuit court. On appeal, defendant contends that the circuit court erred in failing to dismiss the case for unreasonable delay under ORS 135.747. We conclude that ORS 135.747 does not require dismissal of the case, because defendant was brought to trial within a reasonable period of time in justice court and the statute does not otherwise regulate the timing of the second trial in circuit court. Accordingly, we affirm.
Given our disposition of the case, the relevant facts are few in number. Following a single-vehicle accident, defendant was arrested on July 25, 2004, and charged with misdemeanor driving under the influence of intoxicants, ORS 813.010. On February 1,2005, defendant was convicted of that charge by a jury in the Glendale Justice Court for Douglas County. After sentencing, defendant appealed the conviction to circuit court. See ORS 157.010 (providing that, “[i]n a criminal action in a justice court, * * * an appeal may be taken from a judgment of conviction to the circuit court for the county in which the judgment is given”). The effect of the appeal was to qualify the matter for retrial in the circuit court. See ORS 157.060 (appeal to circuit court from criminal conviction in justice court is “for trial upon the issue tried in the justice court”).
The trial in the circuit court was delayed by a number of continuance requests by defendant and by defendant’s change of counsel. Before the fifth trial date scheduled in the case (January 6, 2009), defendant moved for a dismissal under ORS 135.747. That statute provides:
“If a defendant charged with a crime, whose trial has not been postponed upon the application of the defendant*394 or by the consent of the defendant, is not brought to trial within a reasonable period of time, the court shall order the accusatory instrument to be dismissed.”
Under ORS 135.747, a court evaluates whether the unconsented delay between the accusatory instrument and trial is reasonable in light of the “attendant circumstances,” including the reasons for the delay. State v. Garcia/ Jackson,
On April 13, 2009, the court denied defendant’s motion, reasoning that “the mandate of ORS 135.747 was satisfied” because defendant “was arraigned in the Glendale Justice Court on August 18, 2004, and he was provided a jury trial on February 1, 2005.” The court alternatively noted that, if the statute regulated the time of the second trial, defendant “has been directly responsible for, or has consented to, almost all of the delay in bringing this matter to trial.” Still later, defendant renewed his speedy trial motion on August 19, 2009. The court again denied the motion on August 26, 2009, the first day of trial. Defendant was convicted by a jury after a two-day trial. On appeal, defendant renews his contentions that ORS 135.747 requires that he be brought to trial in the circuit court proceedings within a reasonable period of time and that the period of unconsented delay before that trial was unreasonable as a matter of law.
The primary issue in this case is whether ORS 135.747 applies to a second trial in the same criminal proceeding, where the second trial is at the defendant’s behest and for the purpose of vacating a lower court conviction. We determined in State v. Garner,
In Garner, the defendant’s criminal charge was dismissed after a mistrial, the state appealed and obtained a reversal of the dismissal after a lengthy appellate process, the defendant’s motion to dismiss under ORS 135.747 was
“Our interpretive task begins with the text of the statute, giving ‘words that have well-defined legal meanings those meanings.’ Fresk v. Kraemer,337 Or 513 , 520,99 P3d 282 (2004). In common legal parlance, a defendant is ‘brought to trial’ when ‘the trial is commenced.’ Black’s Law Dictionary 242 (4th ed 1968). Thus, the literal command of the statute is satisfied when a defendant’s trial is commenced even if that trial ultimately ends in a mistrial and the defendant is retried. Simply put, ORS 135.747 does not apply to retrials following a mistrial. To hold otherwise would require us to modify the text of the statute contrary to ORS 174.010, which provides, in part, that, ‘[i]n the construction of a statute, the office of the judge is simply to ascertain and declare what is, in terms or in substance, contained therein, not to insert what has been omitted, or to omit what has been inserted [.]’ ”
Id. at 69-70 (footnote omitted; brackets in Garner).
We concluded that this construction of ORS 135.747 was faithful to the purpose of the statute:
“Moreover, that understanding of the statute is consistent with the statute’s underlying purpose. In State v. Emery,318 Or 460 ,869 P2d 859 (1994), the court examined the text and context of ORS 135.747 as well as the evolution of the case law concerning statutory and constitutional speedy trial protections. The court concluded that the purpose of the statute is not to protect defendants from prejudicial delays — as does the guarantee in Article I, section 10, of the Oregon Constitution — but, rather, is to prevent cases from ‘languishing in the criminal justice system’ without ‘prosecutorial action.’ Once a trial has been commenced, a case is no longer languishing for purposes of ORS 135.747.”
Id. at 70 (some citations omitted). The reasoning in Garner militates toward the conclusion that ORS 135.747 applies only to the scheduling of the justice court trial in this case and not to the timing of the second trial in circuit court.
“Since a criminal action in the justice’s or district court cannot be commenced by indictment, but only by complaint (ORS 156.020, 156.610), the statute is without any application to prosecutions commenced in an inferior court. ORS 156.020,156.610.”
Id. at 465.
The court went on to conclude that any delay in obtaining a second trial in the case was a result of the defendant’s failure to request a trial, and that the resulting delay was insufficient to require dismissal under the constitutional speedy trial provision, Article I, section 10, of the Oregon Constitution.* *
“[W]e do hold that where the defendant has been accorded a speedy trial in a justice’s court or a district court — as it must be presumed was the case here — and has been convicted and appeals to the circuit court the burden is upon him to prosecute his appeal with reasonable diligence. He is not in the same position as one brought into the circuit court in the first instance by the State to answer to a charge. On the contrary, he comes to that court with a judgment of conviction against him which he is seeking to have erased. It is true that he is entitled to a trial de novo, but ‘[fit is not a new action, but simply a retrial of an action in an appellate court for the purpose, theoretically, of correcting errors of the inferior court.’ Nurse v. Justus,6 Or 75 [,1876 WL 1460 (1876)]. It is a proceeding in which the defendant, not the State, is the moving party, not in the sense, of course, that the defendant has a duty to prove his innocence, but in the sense that he must take affirmative steps as prescribed by statute to gain the opportunity to defend a second time against the charge of which he was previously convicted and will not be permitted to win an acquittal simply because of inaction by the State.”
Id. at 466-67 (second brackets in Dodson).
As noted, Emery identified the “‘housecleaning’ mechanism” of ORS 135.747 as one that allows “dismissing cases that have been in the system too long without prosecutorial action,” that is, as a regulation of state inaction in prosecuting cases.
Defendant argues that ORS 53.090 requires the application of ORS 135.747 to criminal appeal proceedings in circuit court. ORS 53.090 is one of a series of statutes in ORS chapter 53 that apply to appeals to circuit court of civil judgments in justice court. We have construed ORS 53.090 to also regulate appeals of criminal judgments from justice courts.
“the action shall be deemed pending and for trial therein as if originally commenced in such court, and the court shall have jurisdiction of the cause and shall proceed to hear, determine and try it anew, disregarding any irregularity or imperfection in matters of form which may have occurred in the proceedings in the justice court.”
(Emphasis added.)
Defendant reasons that deeming an action “for trial [in the circuit court] as if originally commenced in such court” means that the “same procedures and statutory
That reading of the statute is broader than its text suggests. The phrase “as if originally commenced in such court” modifies the status of the “action” as “pending * * * for trial.” We interpret the provision “as if originally commenced in such court” to pertain to the manner in which the case is tried and brought to judgment. See State v. Stacey, 25 Or App 97, 100,
Having concluded that ORS 135.747 does not limit the scheduling of the second trial in this case, we readily conclude that defendant was brought to trial within a reasonable period of time. Defendant’s trial in the Glendale Justice Court began six months after the filing of the information.
Affirmed.
Notes
The speedy trial statute in question was former ORS 134.120, both prior to and after its amendment by Oregon Laws 1959, chapter 638, section 16. The amended statute took effect in the middle of the pretrial delay in Dodson. Before its amendment, former ORS 134.120 had provided:
“If a defendant indicted for a crime, whose trial has not been postponed upon his application or by his consent, is not brought to trial at the next term of the court in which the indictment is triable after it is found, the court shall order the indictment to be dismissed, unless good cause to the contrary is shown.”
As amended, former ORS 134.120 provided:
“If a defendant indicted for a crime, whose trial has not been postponed upon his application or by his consent, is not brought to trial within a reasonable period of time, the court shall order the indictment to be dismissed.”
In 1973, the legislature amended former ORS 134.120 to change the references to “indicted for a crime” to “charged with a crime,” and “indictment”
That provision provides, in part, that “justice shall be administered *** without delay.”
See State v. Helleson,