Oregon Appellate Ct - Dec. 18, 2013
by: Abassos • December 18, 2013 • no comments
90 Day Inmate Speedy Trial - Once There's a Continuance the 90-Day Period No Longer Applies
The 90-Day speedy trial period for inmates is not tolled when there is a valid continuance. It is no longer applicable. The only question is whether the continuances were due to motions either filed on the defendant's behalf or granted for "good cause shown." Here, defendant was serving a prison sentence and validly invoked ORS 135.763 to start the statutory requirement that the DA bring him to trial within 90 days. But when the defense attorney asked for the case to be taken off the trial docket because of competency issues, the 90-day period became inapplicable. This is true even though there was a further delay (past the 90 days) after the court found defendant fit to proceed and set the case over for "good cause". State v Ashcroft, 260 Or App ___ (12/18/2013)
Conditional Discharge - Must Be Granted if No PV Alleged Before End of Probation
Conditional Discharge Must Be Granted if The State Hasn't Alleged a Probation Violation Prior to the End of the Probation Period. This is so because the probation contemplated by ORS 475.245 is the exact same probation as in other contexts. Since a normal probation violation must be initiated during the probationary term, so it is with conditional discharge probations. Here, defendant picked up two new convictions and failed to pay her fines. But because the DA failed to allege a violation before the end of probation, the court was required to grant the conditional discharge. State v Granberry, 260 Or App ___ (12/18/2013)
Jury Instruction May Not Expand Factual Allegations on Which Charges are Based
A jury instruction may not functionally amend the indictment by expanding the criminal acts for which defendant could be found guilty. Here, defendant was charged with sex abuse for sexual contact with the victim's vagina. The court gave a jury instruction that allowed a conviction for sexual contact with any intimate body part. That variance functionally amended the indictment and should not have been given. However, the error in this case was not prejudicial because the state neither argued nor presented any evidence that another body part was touched. Affirmed. State v Guckert, 260 Or App ___ (12/18/2013)
