State v. R. O. W. ( 2020 )

757
Submitted February 7, reversed December 2, 2020
In the Matter of R. O. W.,
a Person Alleged to have Mental Illness.
STATE OF OREGON,
Respondent,
v.
R. O. W.,
Appellant.
Lane County Circuit Court
19CC04587; A172087
476 P3d 1259
Maurice K. Merten, Judge.
Joseph R. DeBin and Multnomah Defenders, Inc., filed
the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Joanna L. Jenkins, Assistant Attorney
General, filed the brief for respondent.
Before Armstrong, Presiding Judge, and Tookey, Judge,
and Aoyagi, Judge.
PER CURIAM
Reversed.
758 State v. R. O. W.
PER CURIAM
Appellant appeals a judgment committing him to
the custody of the Mental Health Division for a period of
time not to exceed 180 days. ORS 426.130. He asserts that
the trial court erred in allowing witnesses to appear tele-
phonically, and plainly erred in failing to dismiss the case
because he had been held for more than five days prior to the
hearing. The state concedes error with respect to the fail-
ure to hold a timely hearing. As explained below, we accept
the state’s concession. Accordingly, we need not reach appel-
lant’s other assignment of error.
Appellant was initially held on August 19, 2019,
pursuant to a community mental health program direc-
tor’s hold, and subsequently held under a physician’s hold
beginning on August 22, 2019. See generally ORS 426.232 -
426.234. A hearing was not held until August 29, 2019. An
allegedly mentally ill person who has been held for more
than five judicial days without a hearing is entitled to dis-
missal. State v. L. O. W., 292 Or App 376, 380-81, 424 P3d
789 (2018). In State v. A. E. B., 196 Or App 634, 635, 106 P3d
647 (2004), and State v. J. D., 208 Or App 751, 752, 145 P3d
336 (2006), we explained that the hold provisions of the civil
commitment statutes cannot be bypassed by placing a new
hold on an appellant in order to restart the five-day time
period. We conclude that the error is apparent on the face of
the record and exercise our discretion to correct it in light
of the gravity of the error. See State v. J. S., 293 Or App 117,
423 P3d 168 (2018) (exercising discretion to correct similar
error in light of gravity of error).
Reversed.