State v. Hunter
Decision Date | 06 May 1993 |
Citation | 316 Or. 192,850 P.2d 366 |
Parties | STATE of Oregon, Respondent on Review, v. Clayton R. HUNTER, Petitioner on Review. CC CM 89-1083; CA A66033; SC S39598. |
Court | Oregon Supreme Court |
Peter Gartlan, Deputy Public Defender, Salem, argued the cause and filed the petition for petitioner on review. With him on the petition was Sally L. Avera, Public Defender, Salem.
Robert B. Rocklin, Asst. Atty. Gen., Salem, argued the cause for respondent.
In this criminal case, defendant moved to dismiss the charges against him on the ground that the state had failed to bring him to trial within 90 days of receipt of his speedy trial notice. Trial within 90 days is required by ORS 135.763(1), set out infra, subject to certain exceptions. The trial court denied the motion, finding that defendant's counsel had "waived the 90-day period." The case proceeded to trial. Defendant was convicted. On appeal, the Court of Appeals affirmed on the ground that defendant himself had "consented to the delay." State v. Hunter, 113 Or.App. 713, 719, 833 P.2d 1352 (1992). We also affirm, but on different grounds.
The statutory provisions pertinent to this proceeding are ORS 135.760, 135.763, and 135.765. Those statutes provide inmates in the custody of the Department of Corrections a right to a speedy trial on criminal charges pending against the inmates in Oregon courts.
ORS 135.760 provides:
ORS 135.763 provides:
Finally, ORS 135.765 provides:
"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 with ORS 135.763."
On December 19, 1989, defendant was indicted on four charges in Benton County. On January 9, 1990, the Benton County District Attorney received defendant's "Demand Notice for Speedy Trial," which stated that defendant was incarcerated in the Oregon State Penitentiary and that he was requesting trial on the Benton County charges within 90 days pursuant to ORS 135.760 and 135.763(1), supra. 1 The 90th day from January 9, 1990, was April 9, 1990. Under ORS 135.763(1), trial had to commence on or before that date.
Defendant was transported to Benton County for arraignment. On January 19, 1990, at that arraignment, the following colloquy occurred among the trial court, defendant, and defendant's counsel:
On February 16, 1990, defendant returned to court and entered pleas of not guilty to the four charges against him. The court then heard the state's motion to consolidate defendant's trial with that of his co-defendant. Following arguments on that motion, this exchange occurred:
Defendant next appeared in court on the date scheduled for his trial, May 7, 1990--28 days after the expiration of the 90-day period. At that appearance, defense counsel moved for a one-day continuance. Defendant, however, made a somewhat different request of the court:
After further discussions, the court granted defendant's request:
The following morning, May 8, 1990, defendant appeared with his new counsel. Counsel raised the issue of defendant's speedy trial request and asked if the request was in the court's file. The court responded, The court then set a trial date of May 30.
Before trial, defendant moved to dismiss the case pursuant to ORS 135.765, on the ground that he had not been brought to trial within 90 days of the date that the Benton County District Attorney received his speedy trial notice. The court heard arguments on the motion on June 1, 1990, after defendant had been convicted. The court denied the motion, concluding that defendant's counsel had "waived the 90-day period" at the hearing on February 16 by "indicating that there was no rush in setting the trial date and allowing [the court] to set the trial date up more than 90 days down the line."
On appeal from his convictions, defendant assigned as error the denial of his motion to dismiss. The Court of Appeals affirmed, reasoning:
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