State v. M. Z. ( 2020 )

755
565
307 Orv.App
State
2020 M. Z. December 2, 2020
Submitted February 7, reversed December 2, 2020
In the Matter of M. Z.,
a Person Alleged to have Mental Illness.
STATE OF OREGON,
Respondent,
v.
M. Z.,
Appellant.
Benton County Circuit Court
19CC03574; A171694
476 P3d 1258
Locke A. Williams, Judge.
Alexander C. Cambier and Multnomah Defenders, Inc.,
filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Rebecca M. Auten, Assistant Attorney
General, filed the brief for respondent.
Before Armstrong, Presiding Judge, and Tookey, Judge,
and Aoyagi, Judge.
PER CURIAM
Reversed.
756 State v. M. Z.
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 failing to dismiss the case because
he had been held for more than five judicial days prior to the
hearing. The state concedes the error. As explained below,
we accept the state’s concession.
A physician’s hold was placed on appellant on June
22, 2019, and thereafter filed with the court under case
number 19CC03465. Apparently because hospital staff
believed that appellant would consent to a 14-day diversion
period pursuant to ORS 426.237, no steps were taken to pro-
vide appellant with a hearing within five judicial days of the
hold. Appellant did not consent to the diversion and was not
released after five judicial days. Instead, a new physician’s
hold was created, dated July 1, 2019, filed with the court,
and given case number 19CC03574. A precommitment
investigation was completed on July 2, and a hearing was
held on July 3. The trial court rejected appellant’s argument
that the case should be dismissed because he had been held
for more than five judicial days, reasoning that he had been
held in case number 19CC03574 for only two days.
We have reiterated numerous times that an
allegedly mentally ill person who has been held for more
than five judicial days without a hearing is entitled to dis-
missal. This issue was discussed at length in State v. L. O. W.,
292 Or App 376, 380-81, 424 P3d 789 (2018), in which we
adhered to our long line of precedent on this matter. 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 circumvented by simply placing a new
hold on an appellant who has already been held more than
five judicial days without a hearing. Those cases are con-
trolling here.
Reversed.