State v. Barnes, C79-10-33411
| Citation | 66 Or.App. 896,676 P.2d 344 |
| Decision Date | 08 February 1984 |
| Docket Number | No. C79-10-33411,C79-10-33411 |
| Parties | STATE of Oregon, Respondent, v. Geneva BARNES, Appellant. ; CA A27351. |
| Court | Court of Appeals of Oregon |
Marilyn C. McManus, Deputy Public Defender, Salem, argued the cause for appellant. With her on the brief was Gary D. Babcock, Public Defender, Salem.
Roy Pulvers, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Atty. Gen., and James E. Mountain, Jr., Sol. Gen., Salem.
Before BUTTLER, P.J., and WARREN and ROSSMAN, JJ.
Defendant was found guilty of unlawfully obtaining public assistance under ORS 411.630. She claims that the trial court erred in refusing to grant her motion to dismiss the indictment on the ground that prosecution was barred by the statute of limitations. 1 We reverse the judgment of conviction.
Defendant received both unemployment compensation and public assistance from July 1, 1978, to March 31, 1979. She testified that she thought she only had to advise AFS when she was actually working. After the state discovered that defendant was receiving unemployment compensation, her public assistance grant was terminated, effective March 31, 1979. An indictment and arrest warrant for unlawfully receiving public assistance were issued on October 4, 1979. The warrant was executed on July 18, 1982, two years and nine months after the indictment and three years and four months from the date of the alleged offense.
The dispositive issue is whether the state "commenced" the prosecution within the time limitation set by relevant statutes. ORS 131.125 provides, in pertinent part:
ORS 131.135 provides:
"A prosecution is commenced when a warrant or other process is issued, provided that the warrant or other process is executed without unreasonable delay."
Statutory time limitations for commencing criminal actions provide notice to the accused of the decision to prosecute and the general nature of the charge so as to allow the accused to prepare evidence and to minimize the prejudice produced by the passage of time. Under ORS 131.125 and 131.135, the issuing of an indictment and warrant would provide adequate notice to the accused and toll the statute of limitations only when "the warrant * * * is executed without unreasonable delay." The plain meaning of the statutes requires that the warrant be executed within a reasonable period of time after it is issued.
In State v. Jackson, 228 Or. 371, 377, 365 P.2d 294 (1961), applying ORS 134.120 to determine whether the accused had been brought to trial "within a reasonable period of time," the Supreme Court explained:
" * * * While it is impracticable to attempt a precise definition of the phrase 'a reasonable time,' it may be stated generally that it is such length of time as may reasonably be allowed or required having regard to attending circumstances." (Citations omitted.)
In order to decide whether the delay in executing the warrant in this case was reasonable and the statute of limitation tolled, we examine any circumstances that may explain the passage of two years and nine months between the issuance of the indictment and its execution.
The state argues that defendant "secreted" herself within the state to prevent being served, and so the statute of limitations is tolled by ORS 131.145(2)(b). We find no merit in this claim. Defendant testified that she resided at 40 North Lombard Street, Portland, Oregon, from June 15, 1978, to the time of trial. The state concedes that it was aware of her address, and there is no indication of any attempt to serve defendant with the warrant before July 18, 1982.
In the alternative, the state argues that a registered letter sent by the District Attorney's office to defendant at 40 North Lombard Street on November 1, 1979, tolls the statute of limitations. The letter, which was returned shortly thereafter to the sender marked "unclaimed," advised defendant of the indictment and asked that she make the necessary arrangements to surrender herself. 2 A witness from the District Attorney's office testified that a certified letter is sent to an accused in unlawfully obtaining assistance cases as a courtesy so that a defendant with small children may make appropriate arrangements. While we might approve the District Attorney's considerate attitude, we decline to hold that sending a registered letter suggesting that a...
To continue reading
Request your trial
-
State v. Ali
... ... Barnes, 66 Or.App. 896, 676 P.2d 344 (1984); Commonwealth v. Patterson, 236 Pa.Super. 131, 344 A.2d 710 (1975) ... "General Statutes § ... ...
-
State v. Kruelski
... ... Barnes, 66 Or.App. 896, 676 P.2d 344 (1984); Commonwealth v. Patterson, 236 Pa.Super. 131, 344 A.2d 710 (1975)." State v. Crawford, supra, 202 Conn. at ... ...
-
State v. Green
...in part, "to allow the accused to prepare evidence and to minimize the prejudice produced by the passage of time." State v. Barnes, 66 Or.App. 896, 898-99, 676 P.2d 344 (1984) (emphasis supplied). Preventing prejudice, however, is not the purpose of ORS 135.747. Emery, 318 Or. at 470, 869 P......
-
State v. Crawford
...provided that such warrant or process is executed without unreasonable delay." Model Penal Code (1985) § 1.06(5); see State v. Barnes, 66 Or.App. 896, 676 P.2d 344 (1984); Commonwealth v. Patterson, 236 Pa.Super. 131, 344 A.2d 710 General Statutes § 54-193(b) does not make reference to the ......