State v. Allen, 0103153CR; A121765.

• Decision Date: 26 April 2006
• Docket Number: 0103153CR; A121765.
• Citation: 134 P.3d 976,205 Or. App. 219
• Parties: STATE of Oregon, Respondent, v. Richard C. ALLEN, Appellant.
• Court: Oregon Court of Appeals

134 P.3d 976

205 Or. App. 219

STATE of Oregon, Respondent, v. Richard C. ALLEN, Appellant.

0103153CR; A121765.

Court of Appeals of Oregon.

Submitted on Remand January 9, 2006.

Decided April 26, 2006.

John H. Hingson III, Oregon City, for appellant.

Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Joanna L. Jenkins, Assistant Attorney General, for respondent.

Before HASELTON, Presiding Judge, and ARMSTRONG^* and ROSENBLUM,^** Judges.

HASELTON, P.J.

Defendant, who was convicted of driving under the influence of intoxicants, ORS 813.010, appeals, raising numerous assignments of error. We initially affirmed defendant's conviction without opinion, State v. Allen, 198 Or.App. 534, 109 P3d 803 (2005). The Oregon Supreme Court subsequently allowed review, vacated our decision, and remanded the case to us for reconsideration in light of its decision in State v. Adams, 339 Or. 104, 116 P.3d 898 (2005). State v. Allen, 339 Or. 609, 127 P.3d 650 (2005). On remand, we write to address only defendant's arguments concerning whether he was entitled to dismissal of the charge on the ground that his statutory speedy trial rights were violated. We reject defendant's remaining assignments of error without discussion. For the reasons set forth below, we vacate defendant's conviction and remand with instructions for the trial court to reconsider defendant's speedy trial motion.

Defendant's arrest occurred on October 20, 2001, and the citation issued on November 5. An omnibus hearing was scheduled for January 22, 2002, but that hearing was continued at the prosecutor's request because defendant's motions had not yet been filed, nor had the prosecutor yet received them, although defense counsel had served them by mail on January 18.¹ The hearing was rescheduled for April 4. On March 27, the prosecutor filed a motion for a continuance on the ground that he had accepted a different position and another prosecutor needed time to review and prepare the case. In that motion, the prosecutor stated that he had contacted defense counsel "and he does not object to this motion." Trial was scheduled for July 24, 2002.

An omnibus hearing was held on Tuesday, July 16. At that hearing, the prosecutor attempted to call a witness from the Oregon State Police Implied Consent Unit, Massey, to testify concerning the Intoxilyzer machine. Defense counsel objected to Massey's testimony on the ground that he had not been informed that she would be called. The trial court agreed that a violation of the discovery statute had occurred, and indicated that the court would either exclude the testimony that day or would continue the hearing. The prosecutor argued that Massey's testimony was vital and suggested that defense counsel be given an opportunity to speak with Massey before her testimony. However, defense counsel countered that he did not want to talk to a witness without an investigator present.

The following exchange then occurred:

"THE COURT: I'm kind of telling you: Here's your choice, I'm either going to exclude her or we're going to continue this hearing, and I don't know—it doesn't look to me like trial's going to happen next week if I do that.

"[DEFENSE COUNSEL:] If we're going to—is it your intention to continue the hearing?

"THE COURT: Well, I'm sort of giving you two the choice. Either we're not going to have any testimony from Ms. Massey today or we're going to continue the hearing.

"[DEFENSE COUNSEL:] May I suggest if we're going to not have [her], I would imagine that counsel would say we'd like to have a continuation of the hearing.

"THE COURT: I would imagine.

"[DEFENSE COUNSEL:] What?

"THE COURT: I would imagine you're right.

"[DEFENSE COUNSEL:] And would you grant that if he asked for it?

"THE COURT: Probably.

"[DEFENSE COUNSEL:] May I then put an oar in the water to further the judicial economy. If you're going to order a continuance, may we at least have some—some direct and some cross with leave to present further direct and cross and further evidence at another hearing, so we can efficiently use as much time as we've got today.

"THE COURT: Okay."

(Emphasis added.)

The court then heard testimony from Massey and an additional witness. The court ruled on all of the pending motions except the one pertaining to the Intoxilyzer, after which the following exchange took place:

"THE COURT: That leaves us with the issue of the breathalyzer. I'm willing to come back over this week to hear any other motions so we don't have to continue the trial which is apparently set for next week.

"[DEFENSE COUNSEL:] I'm starting a two-day trial tomorrow in Oregon City. I don't have any time until the day that's set for trial in this case.

"THE COURT: Guess you'd better to file a motion to continue it then. Which I'm sure won't make Klamath County very happy.

"[DEFENSE COUNSEL:] Well, you can do an order of continuance, I believe, yourself, because you've already said you've ordered a continuance on the request of the state.

"THE COURT: I—I'm—I'm leaving it up to you, because I don't know for sure that you want to offer more evidence. You may or may not be able to find someone to come in and testify. I don't know what your status is, so I'm not willing to say continue it today.

"[DEFENSE COUNSEL:] Well, I—you said that you were ordering a continuation of this hearing.

"THE COURT: Right, and I can do it Friday or Monday.

"[DEFENSE COUNSEL:] Well, you know, I have a life.

"THE COURT: Right, so if you can't do it then, then I suggest you both just do a joint motion. I'll be happy to sign it, and we'll go from that. I'm not continuing it on my own motion, though.

"* * * * *

"[DEFENSE COUNSEL:] Is it permissible that we just present to you an order rather than a motion?

"THE COURT: Mm-hmm, sure."

(Emphasis added.) Defense counsel subsequently prepared, and the trial court signed, an omnibus hearing order that disposed of a number of the pending motions and provided: "IT IS FURTHER ORDERED that the State's Motion to Continue the Omnibus hearing to a Mutually Convenient Later Date is ALLOWED."

The continued hearing was next scheduled for October 25, 2002, but was continued at the prosecutor's request due to a scheduling conflict. The continued hearing was then scheduled for December 13, but was continued at the prosecutor's request because one of the witnesses was not available. In each of those instances, the prosecutor indicated that defense counsel had no objection to the requests for continuance. Finally, on January 15, 2003, the hearing was concluded, and defendant's final motion concerning the Intoxilyzer was denied. A pretrial conference was held on February 11, at which the following exchange took place:

"[DEFENSE COUNSEL:] And then we need a trial date.

"THE COURT: Okay, I'll set a trial date.

"[DEFENSE COUNSEL:] May I have any input whether—what it's going to be as far as calendar problems?

"THE COURT: Of course. Just pick a month.

"[DEFENSE COUNSEL:] When is the first time that going to be available for the court; where should I start looking?

"THE COURT: Well, the very—you know, I can't tell you, but I could set it any time. I mean, I set these things. Whether they go or not is another story. So tell me when you'd like to have it, and I'll arrange for it to be then.

"[DEFENSE COUNSEL:] How about the week of April 21st?

"THE COURT: April 21st. It just so happens that I have scheduled a giant medical malpractice case that week, so if you want it the week before, it'll be okay, or it could be May 28th.

"[DEFENSE COUNSEL:] May 28th looks just fine."

On May 28, 2003, defendant filed a motion to dismiss on statutory speedy trial grounds. However, the record contains no indication that the court ever ruled on that motion. The case went to trial on May 28, and defendant was convicted.

Defendant filed a notice of appeal on June 16, 2003. In his opening brief, defendant assigned error to the trial court's denial of his motion to dismiss on statutory speedy trial grounds. Defendant's assignment of error noted that, on October 22, 2003—nearly five months after the trial and over four months after the notice of appeal was filed—the trial court had entered an order purporting to deny the speedy trial motion. Although the Oregon Judicial Information Network shows that an "Order of Denial Speedy Trial" was signed by the trial judge on October 20, 2003, and entered on October 22, 2003, the appellate record does not include that order.

Because we have an obligation sua sponte to determine our jurisdiction to address claims of error, as well as preservation of error,² we must first determine the significance and effect of the October 22, 2003, order. Generally speaking, a trial court loses jurisdiction to act in a criminal case once a notice of appeal has been filed. See generally ORS 138.185(2); ORS 19.270 (trial court retains jurisdiction over only certain matters after notice of appeal has been filed); State v. Etchison, 142 Or.App. 396, 402, 921 P.2d 1333 (1996), rev. den., 324 Or. 654, 931 P.2d 796 (1997) (trial court did not have jurisdiction to enter order after notice of appeal was filed); State v. Price, 92 Or.App. 669, 671 n. 1, 759 P.2d 1130 (1988) (trial court did not have jurisdiction to rule on pending suppression motion when the state had taken an interlocutory appeal of the court's order granting a different motion to suppress). The order entered by the court on October 22, 2003, does not appear to fit within any of the exceptions to this general rule. See, e.g., ORS 138.083 (sentencing court may correct certain types of errors in a judgment while appeal is pending). Thus, the trial court lacked jurisdiction to enter that order.

That does not, however, conclude the matter. The fact that the October 22, 2003, order was a nullity does not preclude our consideration of defendant's speedy trial arguments. The trial court, by proceeding to trial without expressly ruling on defendant's...