State v. Barrett

FILED: April 14, 2004

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Respondent,

v.

LINDA JEAN BARRETT,

Appellant.

C001469CR; A119846

Appeal from Circuit Court, Washington County.

Thomas W. Kohl, Judge.

Submitted on record and briefs March 5, 2004.

Peter A. Ozanne, Executive Director, Peter Gartlan, Chief Defender, and Ernest G. Lannet, Deputy Public Defender, filed the brief for appellant.

Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Jill Smith, Assistant Attorney General, filed the brief for respondent.

Before Haselton, Presiding Judge, and Linder and Ortega, Judges.

PER CURIAM

Reversed and remanded with instructions to grant defendant's motion for dismissal based on violation of her statutory speedy trial right.

PER CURIAM

Defendant appeals from her conviction for driving under the influence of intoxicants, ORS 813.010, arguing that the trial court erred in denying her motion to dismiss the indictment on the basis of a statutory speedy trial violation. ORS 135.747. The trial court denied the motion to dismiss on the ground that such dismissals under ORS 135.747 are without prejudice and the state could have simply refiled the charges. On appeal, the state concedes that the length of delay at issue was unreasonable and that the trial court's rationale for denying the motion was inconsistent with State v. Green, 140 Or App 308, 313, 915 P2d 460 (1996) (proper focus of statutory inquiry is not on state's ability to reindict, but on whether the defendant caused or consented to the delay and whether the delay was unreasonable). We agree with the parties and thus accept the state's concession.

Reversed and remanded with instructions to grant defendant's motion for dismissal based on violation of her statutory speedy trial right.