State v. Graham

PER CURIAM

Defendant appeals his convictions for escape in the first degree and assault in the third degree. Of his four assignments, we discuss only the first. He contends that the trial court erred in denying as untimely his motion to disqualify the trial judge. Under our decision in State v. Hilborn, 71 Or App 534, 692 P2d 1383 (1984), defendant might have prevailed. However, under the Supreme Court’s decision, he does not. State v. Hilborn, 299 Or 608, 705 P2d 192 (1985).

The issue is the meaning of ORS 14.260, which, in relevant part, provides:

“Any party to * * * any cause * * * in a circuit court may establish the prejudice described in ORS 14.250 by motion supported by affidavit that the judge before whom the cause * * * is pending is prejudiced against such party * * *. The affidavit shall be filed * * * in contested cases before or within five days after such cause * * * is at issue upon a question of fact * * *."

The Supreme Court held in Hilborn that, in multi-judge districts, a case is “pending” before all of the judges who might hear the case from the date the citation is filed¹ and is at issue on a question of fact when the defendant enters his plea, which, in this case was on February 3, 1984. Defendant had five days from that date within which to file a motion to have any judge disqualified who might be assigned his case. His motion was not filed until February 28, 1984; therefore, it was not timely.

We have considered the other assignments and find no error.

Affirmed.

1 In State v. Hilborn, supra, this court held that a case is not pending before a particular judge until it is assigned to that judge and concluded that only after assignment to a particular judge did the five day time limit begin to run.