State v. Mandonado

FILED: December 20, 2006

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Respondent,

v.

RICHARD J. MANDONADO,

Appellant.

03CR0208; A126910

Appeal from Circuit Court, Josephine County.

Gerald C. Neufeld, Judge.

Submitted on record and briefs November 3, 2006.

Peter A. Ozanne, Executive Director, Peter Gartlan, Chief Defender, Legal Services Division, and Joshua B. Crowther, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Christina M. Hutchins, Senior Assistant Attorney General, filed the brief for respondent.

Before Haselton, Presiding Judge, and Armstrong and Rosenblum, Judges.

PER CURIAM

Reversed and remanded with instructions to dismiss charge without prejudice.

PER CURIAM

Defendant appeals his conviction on one count of possession of a precursor substance with intent to manufacture a controlled substance. ORS 475.967. He argues that the trial court erred in denying his motion to dismiss the charge on statutory speedy trial grounds pursuant to ORS 135.747, which provides, in part, that if a defendant "is not brought to trial within a reasonable period of time, the court shall order the accusatory instrument to be dismissed." The state concedes the error. As explained below, we accept that concession and, consequently, reverse and remand.

Defendant was indicted on March 13, 2003. Defendant moved to dismiss the charge on September 7, 2004, and the court held a hearing on the motion on September 28, 2004. At the hearing, the prosecutor acknowledged that the state was responsible for the delay but offered no explanation. The trial court denied defendant's motion. On appeal, the state concedes that, under State v. Davids, 339 Or 96, 116 P3d 894 (2005), an unexplained delay of this duration in these circumstances is unreasonable under ORS 135.747. We agree. See also State v. Adams, 339 Or 104, 116 P3d 898 (2005); State v. Johnson, 339 Or 69, 116 P3d 879 (2005), cert den, ___ US ___, ___ S Ct ___, ___ L Ed 2d ___, 75 USLW 3294 (Dec 4, 2006).

Reversed and remanded with instructions to dismiss charge without prejudice.