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State v. McGee

Summarized by: 

Date Filed: 02-27-2013
Case #: A146296
Duncan, J. for the Court; Armstrong, P.J.; and Haselton, C.J.
Full Text Opinion: http://www.publications.ojd.state.or.us/docs/A146296.pdf

Criminal Procedure: When applying ORS 135.747 in a motion to dismiss for lack of a speedy trial, the Court uses a two-step approach. First, the Court determines the total amount of delay and subtracts any delay caused by Defendant's application or consent. Second, the Court determines whether the remaining delay is reasonable.

The State appealed the trial court's granted motion to dismiss for lack of a speedy trial. Defendant was arrested for driving under the influence of intoxicants (DUII). Defendant has not been brought to trial since being charged on March 31, 2008. The delay of over two years since Defendant's arrest was the result of a related contempt proceeding, mandamus action, stays granted to Defendant by the trial court, and other causes. Pursuant to ORS 135.747, Defendant moved the trial court to dismiss for lack of a speedy trial; the trial court granted the motion. On appeal, the State argued that particular subsidiary periods of delay were attributable to Defendant's application or consent. The Court used a two-step approach in reviewing the lower court's decision. First, the Court determined the total amount of delay and subtracted any delay caused by the application or consent of Defendant. Second, the Court determined the reasonableness of the remaining delay. The Court held Defendant applied for or consented to 645 days of delay, including days for defense counsel's knee surgery, and days associated with Defendant seeking contempt sanctions and related stays. Furthermore, the Court held the remaining 190 days of delay were reasonable given the attendant circumstances explaining them. Reversed and remanded.