Here’s how to get a dismissal based on Oregon’s speedy trial statute:
First, the government must set your misdemeanor trial “two years from the date of the filing of the charging instrument.” ORS 135.746(1)(a). The time we wait before the prosecutor files charges doesn’t count for speedy trial. It can count for statute of limitations, see below.
Second, your lawyer must timely object to the setting of the trial past the two year mark. ORS 135.746(3). The lawyer has 7 days from the time the date is set to object. Id.
Third, a judge must agree that the case should be dismissed. ORS 135.752 allows a court to permit a late trial if “the court finds on the record substantial and compelling reasons to allow the proceeding to continue.”
Separate from Oregon’s speedy trial statute are the constitutional rights to speedy trial. For the constitutional protections to work you must demonstrate prejudice, and the court is generally unconcerned with stress and anxiety. “Anxiety and stress are inherent in any criminal prosecution. Most criminal prosecutions cause stress, discomfort and interference with a normal life.” State v. Fleetwood, 186 Or App 305 (2003) (internal quotation omitted); see also State v. Moylett, 123 Or App 600, 606 (1993) (defendant “was never incarcerated, and was not prejudiced in his ability to defend the case”). Prejudice is required, like destruction of evidence or the loss of a witness.
There is a separate protection for lengthy delays between the time a case is charged and a warrant is served. The courts will accept less delay there, and “generally expect that the police will execute warrants of this sort within a matter of weeks, not months.” State v. Davids, 339 Or 96, 101 n 4 (2005). This is not speedy trial but rather a statute of limitations protection, explained in State v. Barnes, 66 Or App 896 (1984):
“In order to decide whether the delay in executing the warrant in this case was reasonable and the statute of limitation tolled, we examine any circumstances that may explain the passage of two years and nine months between the issuance of the indictment and its execution.
The state argues that defendant ‘secreted’ herself within the state to prevent being served, and so the statute of limitations is tolled by ORS 131.145(2)(b). We find no merit in this claim. Defendant testified that she resided at 40 North Lombard Street, Portland, Oregon, from June 15, 1978, to the time of trial. The state concedes that it was aware of her address, and there is no indication of any attempt to serve defendant with the warrant before July 18, 1982.
In the alternative, the state argues that a registered letter sent by the District Attorney’s office to defendant at 40 North Lombard Street on November 1, 1979, tolls the statute of limitations. The letter, which was returned shortly thereafter to the sender marked “unclaimed,” advised defendant of the indictment and asked that she make the necessary arrangements to surrender herself.[2] A witness from the District Attorney’s office testified that a certified letter is sent to an accused in unlawfully obtaining assistance cases as a courtesy so that a defendant with small children may make appropriate arrangements. While we might approve the District Attorney’s considerate attitude, we decline to hold that sending a registered letter suggesting that a defendant surrender provides any excuse for failure to execute a warrant within a reasonable time. The letter was not effective service of process under ORCP 7 D, and defendant was under no legal duty to pick up the registered letter. The only inference reasonable from the mailing and return of the registered letter in November, 1979, was that defendant was not going to surrender herself as the letter requested, and so actual service was necessary. On June 7, 1982, the state mailed another registered letter to defendant, which was again returned unclaimed, and on July 18, 1982, the warrant was served by a police officer.
Viewing the state’s case in the best light, there remains a period of two years, seven months from November, 1979, until June, 1982, in which the state took no action to further the prosecution, and it offers no reason whatever for the delay. Defendant had no actual notice of the indictment for three years and four months after the alleged offense.
The statutory time limitations contained in ORS 131.125 are specifically designed to prevent this type of protracted, haphazard prosecution. The state failed to serve the warrant in this case and is not entitled to prevail because defendant did not respond to its request to surrender herself voluntarily. Under these circumstances, we find that the delay was unreasonable as a matter of law. The excuse for the delay was no excuse at all. We conclude that the state failed to “commence” the prosecution within the three-year period set out in ORS 131.125(2)(a). Defendant’s motion to dismiss the indictment should have been granted.
Reversed and remanded with instructions to allow defendant’s motion to dismiss the indictment.”