135.748
Periods of time excluded from time limits. (1) All applicable periods of elapsed time as follows
are excluded from the time limits described in ORS 135.746:
(a) A period of
time during which the defendant is:
(A) Under
observation or examination for fitness to proceed under ORS 161.365, beginning
when the issue of the defendant’s possible lack of fitness to proceed has been
raised by the defendant or the defendant’s counsel, until a final determination
regarding the defendant’s fitness to proceed has been made by the court;
(B) Determined to
be unfit to proceed by the court pursuant to ORS 161.360, 161.363 and 161.370;
(C) Under
observation or examination after notice of the issue of the defendant’s
qualifying mental disorder, partial responsibility, diminished capacity,
insanity or other mental defense is raised by the defendant or the defendant’s
counsel, until the trial date; or
(D) Unable to
appear by reason of illness or physical disability.
(b) A period of
time following the filing of an interlocutory appeal or an appeal from the
dismissal of the charge or charging instrument, or that results from a stay
issued by an appellate court in a mandamus or habeas proceeding, until the
appellate judgment is issued or the stay is lifted by the appellate court.
(c) A period of
time between a scheduled court appearance at which the defendant fails to
appear and the next scheduled court appearance other than an appearance that
occurs for the purpose of addressing a warrant resulting from the defendant’s
failure to appear.
(d) A period of
time during which the defendant’s location is known but the defendant’s
presence for trial cannot be obtained, or during which the defendant is outside
this state and resists being returned to this state for trial.
(e) A period of
time during which the defendant’s location is unknown and:
(A) The defendant
has attempted to avoid apprehension or prosecution; or
(B) The defendant’s
location cannot be determined by due diligence.
(f) A period of
time while the defendant is on trial or engaged in court proceedings in an
unrelated matter, whether in the same court or a different court, and was
therefore physically unavailable for trial.
(g) A period of
time between a mistrial on the charging instrument and a subsequent trial on
the charging instrument, not to exceed three months for each mistrial. The
three-month limit may be extended by the court for good cause upon request from
either party or upon the court’s own motion.
(h) A period of
time between a continuance or a rescheduling of a trial date, granted at the
request of, or with the consent of, the defendant or the defendant’s counsel,
and the new trial date. A defendant who is proceeding without counsel may not
consent to a continuance or a rescheduling unless the court has advised the
defendant of the defendant’s right to a speedy trial within the time limit
required in ORS 135.746 and the consequences of the defendant’s consent to the
continuance or rescheduling.
(2) Any period of
time excluded pursuant to subsection (1) of this section from the time limits
described in ORS 135.746 that applies to a defendant shall apply to all other
defendants charged in the charging instrument. However, if the court finds that
it is clearly inappropriate to apply the time exclusion to all of the other
defendants, the court may order any relief that justice requires. [2014 c.73 §2;
2017 c.634 §2; 2025 c.559 §55]
Note: See note under 135.746.
Notes of Decisions
Cited in
5
cases (
3 in the last 5 years), 2019–2023 · leading case:
State v. Krieger, 473 P.3d 550 (Or. Ct. App. 2020).
State v. Krieger, 473 P.3d 550 (Or. Ct. App. 2020).
· cites it 50× “746 provides, in part: “(1) Except as provided in ORS 135.748: “(a) A trial in which the most serious charge alleged in the charging instrument is designated by statute as a misdemeanor must commence within two years from the date of the filing of the charging instrument.”
State v. McGee, 437 P.3d 238 (Or. Ct. App. 2019).
· cites it 18× “However, ORS 135.748 excludes certain time periods from that two-year calculation.”
State v. Shelby, 497 P.3d 772 (Or. Ct. App. 2021).
· cites it 4× “Next, we conclude that after excluding delays attributable to defen- dant under the exception in ORS 135.748(1)(h), defendant’s trial was timely under ORS 135.”
Betschart v. Garrett (D. Or. 2023).
· cites it 2× “ORS § 135.748. Therefore, there is not the same urgency to appointment of counsel that exists for in-custody defendants who are entitled to a trial within 60 days.”
State v. Melecio, 507 P.3d 764 (Or. Ct. App. 2022).
· cites it 2× “Moreover, contrary to defendant’s argument, noth- ing in the legislative history of ORS 135.748 indicates that the legislature intended to depart from how due diligence, a legal term of art, has typically been defined (and how defen- dant agrees the term is defined).”
— Or. Rev. Stat. § 135.748(1) — 1 case
State v. McGee, 437 P.3d 238 (Or. Ct. App. 2019).
“However, ORS 135.748 excludes certain time periods from that two-year calculation.”
— Or. Rev. Stat. § 135.748(1)(a)(D) — 1 case
State v. Krieger, 473 P.3d 550 (Or. Ct. App. 2020).
“746 provides, in part: “(1) Except as provided in ORS 135.748: “(a) A trial in which the most serious charge alleged in the charging instrument is designated by statute as a misdemeanor must commence within two years from the date of the filing of the charging instrument.”
— Or. Rev. Stat. § 135.748(1)(b) — 1 case
State v. McGee, 437 P.3d 238 (Or. Ct. App. 2019).
“However, ORS 135.748 excludes certain time periods from that two-year calculation.”
— Or. Rev. Stat. § 135.748(1)(c) — 1 case
State v. Krieger, 473 P.3d 550 (Or. Ct. App. 2020).
“746 provides, in part: “(1) Except as provided in ORS 135.748: “(a) A trial in which the most serious charge alleged in the charging instrument is designated by statute as a misdemeanor must commence within two years from the date of the filing of the charging instrument.”
— Or. Rev. Stat. § 135.748(1)(d) — 1 case
State v. Krieger, 473 P.3d 550 (Or. Ct. App. 2020).
“746 provides, in part: “(1) Except as provided in ORS 135.748: “(a) A trial in which the most serious charge alleged in the charging instrument is designated by statute as a misdemeanor must commence within two years from the date of the filing of the charging instrument.”
— Or. Rev. Stat. § 135.748(1)(e)(A) — 1 case
State v. Krieger, 473 P.3d 550 (Or. Ct. App. 2020).
“746 provides, in part: “(1) Except as provided in ORS 135.748: “(a) A trial in which the most serious charge alleged in the charging instrument is designated by statute as a misdemeanor must commence within two years from the date of the filing of the charging instrument.”
— Or. Rev. Stat. § 135.748(1)(e)(B) — 1 case
State v. Melecio, 507 P.3d 764 (Or. Ct. App. 2022).
“Moreover, contrary to defendant’s argument, noth- ing in the legislative history of ORS 135.748 indicates that the legislature intended to depart from how due diligence, a legal term of art, has typically been defined (and how defen- dant agrees the term is defined).”
— Or. Rev. Stat. § 135.748(1)(f) — 1 case
State v. Krieger, 473 P.3d 550 (Or. Ct. App. 2020).
“746 provides, in part: “(1) Except as provided in ORS 135.748: “(a) A trial in which the most serious charge alleged in the charging instrument is designated by statute as a misdemeanor must commence within two years from the date of the filing of the charging instrument.”
— Or. Rev. Stat. § 135.748(1)(h) — 2 cases
State v. McGee, 437 P.3d 238 (Or. Ct. App. 2019).
“However, ORS 135.748 excludes certain time periods from that two-year calculation.”
State v. Shelby, 497 P.3d 772 (Or. Ct. App. 2021).
“Next, we conclude that after excluding delays attributable to defen- dant under the exception in ORS 135.748(1)(h), defendant’s trial was timely under ORS 135.”
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