State v. T. J. G. ( 2020 )

749
Submitted March 1, 2019, reversed December 2, 2020
In the Matter of T. J. G.,
a Person Alleged to have Mental Illness.
STATE OF OREGON,
Respondent,
v.
T. J. G.,
Appellant.
Clackamas County Circuit Court
18CC04898; A168856
477 P3d 408
Colleen F. Gilmartin, Judge pro tempore.
Joseph R. DeBin and Multnomah Defenders, Inc., filed
the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Carson L. Whitehead, Attorney General,
filed the brief for respondent.
Before Armstrong, Presiding Judge, and Tookey, Judge,
and Shorr, Judge.
PER CURIAM
Reversed.
750 State v. T. J. G.
PER CURIAM
Appellant appeals a judgment committing him to
the custody of the Mental Health Division for a period not to
exceed 180 days, based upon a finding that he has a mental
illness, and an order prohibiting him from purchasing or
possessing a firearm. The state concedes error and we agree
and reverse the judgment and the order.
Appellant was detained on a series of 12-hour
“transport holds” under ORS 426.231, from August 16, 2018,
until August 25, when he was detained pursuant to a “phy-
sician’s hospital hold” under ORS 426.232. Appellant’s civil
commitment hearing was held on August 31, 2018, and he
was committed based on the court’s finding that he has a
mental illness and is a danger to himself. The court then
entered an order prohibiting him from purchasing or pos-
sessing a firearm.
On appeal, appellant contends that the circuit court
should have dismissed the proceeding, because he was not
released after being held for more than twelve hours on a
transport hold or, alternatively, because he had been held
for more than five judicial days without a hearing. The state
concedes that the commitment should be dismissed because
appellant was held for more than five judicial days with-
out a hearing, and we accept the concession. As we recently
reiterated in State v. L.O.W., 292 Or App 376, 381, 424 P3d
789 (2018), a court lacks authority to hold a mental com-
mitment hearing when a person has been involuntarily
hospitalized for longer than five judicial days. See also ORS
426.234(4) (requiring courts to immediately commence com-
mitment proceedings upon receiving notice that a person is
being held in a physician hold, and providing that, except
in circumstances not present in this case, “a person shall
not be held under ORS 426.232 * * * for more than five judi-
cial days without a hearing being held under ORS 426.070
to 426.130”); ORS 426.237(4)(b) (requiring courts to imme-
diately commence commitment proceedings when mental
health personnel recommend doing so in an investigation
report during a physician hold, and providing that “[i]n
no case shall the person be held longer than five judicial
days without a hearing under this subsection.”). Because
Cite as 307 Or App 749 (2020) 751
appellant was held for longer than five judicial days with-
out a hearing, the trial court erred in failing to dismiss the
commitment proceeding. We therefore reverse the judgment
of commitment and the order prohibiting the possession of
firearms.
Reversed.