State v. Waechter

• Decision Date: 13 October 1999
• Citation: 986 P.2d 1281,163 Or. App. 282
• Parties: STATE of Oregon, Respondent, v. Troy WAECHTER, Appellant.
• Court: Oregon Court of Appeals

986 P.2d 1281

163 Or. App. 282

STATE of Oregon, Respondent, v. Troy WAECHTER, Appellant.

(960263CM; CA A97160)

Court of Appeals of Oregon.

Argued and Submitted January 27, 1999.

Decided October 13, 1999.

Robin A. Jones, Deputy Public Defender, argued the cause for appellant. With her on the briefs was Sally L. Avera and David E. Groom, Public Defenders.

Jonathan H. Fussner, Assistant Attorney General, argued the cause for respondent. With him on the briefs were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Before De MUNIZ, Presiding Judge, and DEITS, Chief Judge, and HASELTON, Judge.

De MUNIZ, P.J.

Defendant appeals from his conviction for theft of services in the second degree. ORS 164.125. We reverse.

On April 29, 1996, defendant was charged with theft of services by making unauthorized long distance telephone calls on his roommate's telephone. On August 7, 1996, while incarcerated at Eastern Oregon Correctional Institute (EOCI), defendant mailed a speedy trial demand to the court and the district attorney, in accordance with ORS 135.760.¹ The district attorney received the demand on August 13 and filed a motion for an order to transport defendant from EOCI to court for a hearing on September 18. The order was signed by the court on August 22 but defendant was never transported pursuant to that order. On October 22, the district attorney obtained another order to have defendant transported "forthwith." Defendant was transported to court on November 7, at which time he was advised of his right to counsel. On November 12, 1996, the court appointed counsel for defendant, 91 days after the district attorney received his demand letter. Counsel immediately moved to dismiss the charge, pursuant to ORS 135.763 and ORS 135.765,² and a hearing on that motion was held on November 14.

At the hearing, the state moved for a continuance, asserting that it did not know of any reason why defendant was not transported from prison to the courthouse on either of the two occasions that an order had been issued. The trial court denied the motion, holding that a continuance could not be granted after the statutory 90 days had elapsed. The state then asked that the court dismiss the charge without prejudice. Defendant opposed the state's request, arguing that to do so would render the statutes meaningless. The trial court held that it was within its discretion to dismiss with or without prejudice. It then dismissed the case without prejudice for violation of the 90-day rule in ORS 135.763.

The next day, the state refiled the complaint with a new case number. Defendant filed a motion to dismiss and a motion to incorporate the entire record of the previous proceeding. The trial court granted the motion to incorporate the record from the previous proceeding but denied the motion to dismiss. In a bench trial on stipulated facts, defendant was found guilty and sentenced to 12 months probation, subject to payment of $652.25 in restitution.

Defendant appeals, assigning error to the trial court's denial of his motion to dismiss. He argues that the trial court should have dismissed the case because the dismissal in the first case should have been with prejudice. Defendant contends that ORS 135.765 does not permit a trial court to dismiss a case without prejudice because to do so would nullify the purpose of the statute. Alternatively, defendant argues that the trial court abused its discretion in ordering that the first case be dismissed without prejudice because there was not good cause for the delay in bringing him to trial.

At the outset, the state contends that we should not consider defendant's arguments because defendant moved for dismissal "upon the grounds in the attached Affidavit of Counsel." In the attached affidavit, counsel recites that the first case was dismissed for violation of the 90-day rule found in ORS 135.763, that the case was dismissed without prejudice, that counsel requested that the case be dismissed with prejudice, and that, after hearing arguments of counsel, the court declined to dismiss with prejudice. The affidavit concludes: "Defendant makes this affidavit in support of his Motion to Dismiss and respectfully requests that the court reconsider its opinion."

The state argues that "[d]efendant has appealed from a motion seeking reconsideration of a previously denied motion" and that the trial court's denial of that motion without comment "is equally consistent with the court declining to reconsider its previous ruling at all." The state claims that we should not consider defendant's arguments because defendant failed to argue that the trial court abused its discretion in declining to reconsider its earlier ruling. Defendant responds that the motion that he filed was a "motion to dismiss," not a "motion seeking reconsideration," and that the language in the affidavit requesting that the court "reconsider its opinion" was intended simply to acknowledge to the judge that he had addressed the issue before.

Essentially, the state is arguing that defendant may not challenge the judgment in the first case, namely, dismissal without prejudice, on appeal in the second case. However, as defendant points out, and the state concedes, he could not appeal from the initial order of dismissal without prejudice under ORS 138.020 and ORS 138.053. Thus, defendant's first opportunity to challenge that decision was when the state refiled the charges.³

Defendant's argument that the charge in this case should be dismissed is based on his rights under ORS 135.765, the statute assuring prisoners of a speedy trial. The fact that the exact charge was dismissed, then brought again under a new case number, should not preclude defendant from now arguing that the charge should not be allowed to be brought a second time once the statute has been violated. The state also claims that defendant's argument is not preserved because he failed to argue that he was subjected to former jeopardy. However, defendant's arguments are not based on the constitutional argument of former jeopardy; they are based on the speedy trial statute. Furthermore, defendant is not challenging the integrity of the judgment in the first case; he is not requesting that the order in the original case be vacated and reentered with prejudice. Defendant is merely requesting that the present case be dismissed. Thus, defendant's argument that the original case should have been dismissed with prejudice is grounded firmly in the prisoner speedy trial statute, the basis on which defendant is now seeking dismissal, and is an argument that we believe defendant should be permitted to make.

We turn now to the merits of defendant's arguments. Under ORS 135.760, a person who is imprisoned and against whom there is a charge pending may demand that the state bring the case to trial "forthwith." ORS 135.763 requires the district attorney to bring the prisoner to trial within 90 days of receiving notice of the inmate's demand. If the prisoner is not brought to trial within 90 days, then, either on its own motion or on the prisoner's motion, the court must dismiss the charges pursuant to ORS 135.765. The only circumstances in which dismissal is not required are when failure to bring the prisoner to trial within 90 days is a result of motions filed on behalf of the prisoner, where continuance for good cause is allowed, or when the prisoner is unavailable for trial for reasons other than the imprisonment. ORS 136.765 is silent as to whether dismissal shall be with or without prejudice and whether that decision is within the discretion of the court. Accordingly, we must determine what the legislature intended. See PGE v. Bureau of Labor and Industries, 317 Or. 606, 610-612, 859 P.2d 1143 (1993) (outlining methodology for interpreting a statute).

Defendant contends that dismissal under ORS 135.765 must be with prejudice and that it is not within the trial court's discretion to dismiss with or without prejudice. He points out that the statute expressly provides limited exceptions to the dismissal requirement, claiming that that demonstrates that the legislature did not intend to allow the court any discretion to create other reasons to deny dismissal. Defendant then argues that, unless the statute of limitations has run, granting dismissal without prejudice has precisely the same effect as denying dismissal because the state can simply refile the case the next day, as it did here. Thus, to allow dismissal without prejudice would render the statute a nullity. We begin by noting that, although we have not specifically held that a dismissal under these circumstances is a dismissal with prejudice, at least three of our previous decisions strongly suggest that a dismissal of a criminal charge pursuant to ORS 135.760 et seq. is a bar to further prosecution of that charge. In State v. Kent, 5 Or.App. 297, 484 P.2d 1109 (1971), the defendant was indicted on charges of inducement of a child into a conveyance with the intent to commit a sex offense, sodomy, and contributing to the delinquency of a minor. He filed a speedy trial request under former ORS 134.510 et seq. (renumbered ORS 135.760 et seq.), on October 6, 1969. A second indictment with the same file number, listing the first two charges, but omitting the charge of contributing to the delinquency of a minor (because the underlying statute had been declared unconstitutional), was returned on December 19, 1969. On January 5, 1970, more than 90 days after his speedy trial request, the defendant filed a motion to dismiss under former ORS 134.520(1). The trial court denied the motion, and the defendant was convicted on the first two counts. On appeal, the state argued that reindictment of the defendant on December 19 started the 90-day period running anew. However, after noting that reindictment was not necessary because the contributing charge could have been eliminated with a motion to dismiss the...