State v. Chelemedos 286 Or App 77 (2017)

ORS 136.290 only provides a mechanism for a defendant to obtain release after being held 60 days; it does not provide that incarceration beyond 60 days is automatically prejudicial.

Defendant appealed a judgment of conviction for felony DUII and driving while suspended.  Defendant assigned error to the trial court’s denial of his motion to dismiss for lack of a speedy trial on the grounds that the speedy-trial clock commenced when the state filed the first information in March 2012, and his trial did not occur until June 2014.  While Defendant was not in custody for the entire period between those dates, he was detained for a total of 90 days.  On appeal, Defendant argued he was prejudiced by the delay because his pretrial incarceration was excessive under ORS 136.290, which provides that a defendant may not be held in custody for more than 60 days following arrest.  Under State v. Hilton, 187 Or App 666 (2004), a defendant bears the burden of showing that he suffered actual prejudice as a result of the state’s delay in commencing trial. Because ORS 136.290 does not provide that incarceration beyond 60 days is automatically prejudicial, the Court of Appeals concluded Defendant did not meet his burden of proof in showing prejudice resulting from delay of trial.  Affirmed.