State v. Beltran

A motion for consolidation is untimely when the motion is not filed until the same day of the trial, and the defendant is not given the opportunity to make a calculated response.

Beltran appeals a conviction for second-degree criminal mischief arguing that the court erred in granting the State’s motion to consolidate charges. On the day before Beltran’s trial, the State moved to amend an indictment pleading for second-degree criminal mischief. The State alleged that during an altercation with police officers, Beltran caused over $100 worth of damage to a police radio, but ORS 164.354 requires proof that damage exceeded $500. The court denied the motion to amend the pleading, but allowed the state to dismiss this count, file a new indictment with the correct statutory language, and then consolidate the cases to be tried together. A motion to consolidate cases must be made timely, but is not considered timely when the motion is not filed until the day set for trial on some, but not all of the charges and does not allow the defendant to provide a calculated response. The Court held that the State’s motion for consolidation was untimely because the motion was filed on the same day that the trial was scheduled to start, and the defendant was not given the opportunity to provide a calculated response. Reverse and remand the judgment for conviction of second-degree criminal mischief.