State v. PersonState v. Person
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- Before:
- Warren
Lead Opinion
Defendant appeals from his convictions, assigning as error the trial court’s denial of his motion to dismiss for failure to bring him to trial within 90 days after the date on which he gave notice to the district attorney pursuant to
Defendant was indicted on October 31,1989. Subsequently, because of a conviction in an unrelated case, he became an inmate in the custody of the Department of Corrections. On January 30, 1990, he sent the Linn County District Attorney a request for a speedy trial pursuant to
On March 26,1990, the court permitted defendant’s counsel to withdraw and appointed substitute counsel. The next day, the court notified the new counsel that the April 11 trial date would be reset. On June 25, 1990, more than 90 days after the district attorney received defendant’s early trial notice, defendant moved to dismiss the indictment pursuant to
Neither the district attorney nor the defendant requested a continuance. Therefore, under the express terms of
“It is not the responsibility of a court to bring criminal matters to trial; that is the duty of the district attorney. If a case is not timely prosecuted, a court may respond by dismissal or other sanction, but it cannot proceed with the prosecution of the case. The notice underORS 135.760 is not a motion for an early trial addressed to the court, it is a notice to the prosecutor that the inmate wishes trial within the statutory period.” 90 Or App at 481.
The legislature imposed that duty, in part, because it recognized that “the progression of a criminal prosecution is largely in control of the state.” 90 Or App at 481. By askingus to read a “good cause” exception into
In State v. Whiley, 84 Or App 385, 389, 734 P2d 8 (1987), the defendant inmate requested a speedy trial pursuant to
Although we did not expressly so state, the same rationale that guided our decision in State v. Gilliland, supra, guided our decision in State v. Whiley, supra. The state cannot abdicate its responsibility to control a prosecution. It must take affirmative action to bring a defendant to trial within 90 days, request a continuance for good cause or suffer a dismissal under
The facts of this case are not distinguishable from those in State v. Whiley, supra, in any meaningful respect. We adhere to
Reversed.
Notes
“Any inmate in the custody of the Department of Corrections against whom there is pending at the time of commitment or against whom there is filed at any time during imprisonment, in any court of this state, an indictment, information or criminal complaint charging the inmate with the commission of a crime, may give written notice to the district attorney of the county in which the inmate is so charged requesting the district attorney to prosecute and bring the inmate to trial on the charge forthwith.”
“The district attorney, after receiving a notice requesting trial underORS 135.760 , shall, within 90 days of receipt of the notice, bring the inmate to trial upon the pending charge.”
“A continuance may be granted upon the request of the district attorney and with the consent of the inmate. The court shall grant any continuance with the consent of the defendant. The court may grant a continuance on motion of the district attorney for good cause shown. The fact of imprisonment is not good cause for the purposes of this subsection.”
“On motion of the defendant or the counsel of the defendant, or on the own motion of the court, the court shall dismiss any criminal proceeding not brought to trial in accordance withORS 135.763. ”
The court found good cause for the unrequested continuance on the basis of the late substitution of counsel. Because of our disposition of this matter, we do not decide whether that finding was correct.
The dissent would hold that, if the state is prepared to present its case within the period mandated by
Dissenting Opinion
dissenting.
Even though the state was ready to go to trial on April 11, 1990, the majority penalizes it by dismissing the indictment because of defendant’s inability to be ready for trial by that date. That holding constitutes an absurd construction of
On March 26, 1990, the trial court allowed defendant’s appointed counsel to withdraw and appointed new counsel. When new counsel was appointed, a member of the court staff took the trial off the court docket and noted that the “trial needs to be reset.” That action occurred despite the district attorney’s communication with the court that the April 11 trial date needed to remain in effect, because of the
“If there is any fault in this case not going to trial on April 11[,] it is with Mr. Hickam [the first appointed counsel], Mr. Willes [the second appointed counsel], and the Court staff.
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“The Court finds there was no fault by the State of Oregon and the District Attorney’s Office regarding the trial not being conducted on April 11, 1990.
“This change in the scheduled trial date from April 11, 1990, was created by ethical conflicts with Mr. Hickam and an essential State’s witness Mr. Michael Hendricks, which matter was called to the attention of Mr. Hickam by the Deputy District Attorney assigned to this case.”
The majority relies on State v. Gilliland, 90 Or App 477, 752 P2d 1255 (1988), to support its decision. However, this case, unlike Gilliland, does not concern a district attorney’s failure to respond in a timely request for trial under
In construing
“(1) The district attorney, after receiving a notice requesting trial underORS 135.760 , shall, within 90 days of receipt of the notice, bring the inmate to trial upon the pending charge.
” (2) A continuance may be granted upon the request of the district attorney and with the consent of the inmate. The court shall grant any continuance with the consent of the defendant. The court may grant a continuance on motion of the district attorney for good cause shown. The fact of imprisonment is not good cause for the purposes of this subsection.”
Reading that statute to require the district attorney to move for a continuance even though the state is prepared to proceed to trial within the 90-day period produces an absurd result, because district attorneys have no direct control over court docketing. See
“[t]he inmate [to] request the District Attorney to make prosecution for such other crimes [with which he is charged] while he is imprisoned so that upon parole he will have a clean record.” Minutes, House Judiciary Committee 1 (Apr. 18, 1955 —statement of Sen. Francis, SB 412’s sponsor).
There is no expression in the legislative history that the legislature contemplated that a charge would be dismissed when circumstances beyond the control of the district attorney caused the delay. Requiring the district attorney to move for a continuance when the state is ready for trial is inconsistent with the principle that the burden of moving for a continuance should fall on the party who caused the delay.
To the extent that the holding in State v. Whiley, supra, is inconsistent with what the legislature intended, it should be overruled. There is evidence to support the trial court’s finding that the district attorney did everything within his power to comply with defendant’s request for a trial within the 90-day period. I would hold that the state’s actions satisfied the requirements of
I dissent.
Rossman, Deits, and Riggs, JJ., join in this dissent. Essentially the same versions of
It was enacted as