State v. B. C. ( 2021 )

258
Submitted May 7; reversed June 9; on respondent’s petition for reconsideration
filed June 18 and appellant’s response to petition for reconsideration filed June
18, petition for reconsideration denied by opinion August 11, 2021
See 313 Or App 791, ___ P3d ___ (2021)
In the Matter of B. C.,
a Person Alleged to have Mental Illness.
STATE OF OREGON,
Respondent,
v.
B. C.,
Appellant.
Yamhill County Circuit Court
20CC05538; A174625
487 P3d 879
Jennifer K. Chapman, Judge.
Joseph R. DeBin and Multnomah Defenders, Inc., filed
the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Julia Glick, Assistant Attorney
General, filed the brief for respondent.
Before Ortega, Presiding Judge, and Shorr, Judge, and
Powers, Judge.
PER CURIAM
Reversed.
Cite as 312 Or App 258 (2021) 259
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 and an order prohibiting him
from purchasing or possessing firearms, based on a finding
that he has a mental illness. 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. We accept the state’s
concession.
Appellant was detained on a director’s hold on
September 9, 2020, and the hearing in this case occurred
on September 18, 2020, seven judicial days after appellant’s
detention commenced. As we held in State v. L. O. W., 292
Or App 376, 381, 424 P3d 789 (2018), and numerous cases
before and since, a court lacks authority to hold a mental
commitment hearing when a person has been involuntarily
hospitalized for longer than five judicial days, and a person
held longer than five judicial days without a hearing is enti-
tled to dismissal. 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.