689
Argued and submitted April 16, 2021, affirmed September 14, petition for
review denied December 29, 2022 (370 Or 694)
STATE OF OREGON,
Plaintiff-Respondent,
v.
JUSTIN GIVENS,
Defendant-Appellant.
Coos County Circuit Court
19CR34882; A172654
517 P3d 1021
Defendant was charged with several misdemeanors, was found unfit to stand
trial, was committed to the state hospital for restoration, and, after being committed for the maximum period of time permitted under ORS 161.370(10), eventually was ordered to be released to the community for restoration. While defendant was in community restoration, the trial court allowed the state to dismiss
the charges without prejudice and to refile some of them the same day. Defendant
moved to dismiss those refiled charges pursuant to ORS 161.370(13). ORS
161.370(13) states that the court must dismiss, without prejudice, all charges
against a defendant if the court determines that there is no foreseeable, substantial probability that the defendant will gain or regain the capacity to stand
trial or that the defendant is “entitled to discharge” under ORS 161.370(10).
Pursuant to ORS 161.370(10), a defendant who “remains committed” must be
discharged after three years or a period of time equal to the maximum sentence
that the court could have imposed upon conviction, whichever is shorter. The trial
court denied the motion and, shortly thereafter, found defendant fit to proceed
to trial. Defendant entered a conditional guilty plea to one count of resisting
arrest, reserving his right to appeal the court’s ruling on his motion to dismiss.
On appeal, defendant contends that the text, context, and legislative history
of ORS 161.370 require dismissal of his refiled charges so long as he remained
unfit to stand trial, regardless of whether he was discharged from commitment.
Held: Under ORS 161.370(13), where a defendant is determined to be unfit to
stand trial and has been committed for the maximum period of time permitted
under ORS 161.370(10), the trial court is not required to dismiss refiled charges
when the defendant is not presently committed to the state hospital.
Affirmed.
Andrew E. Combs, Judge.
Kyle Krohn, Deputy Public Defender, argued the cause
for appellant. Also on the brief was Ernest G. Lannet, Chief
Defender, Criminal Appellate Section, Office of Public
Defense Services.
690 State v. Givens
Carson L. Whitehead, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Ortega, Presiding Judge, and Shorr, Judge, and
Powers, Judge.
ORTEGA, P. J.
Affirmed.
Cite as 321 Or App 689 (2022) 691
ORTEGA, P. J.
Defendant was charged with several misdemeanors,
as we will explain, and was determined to be unfit to stand
trial. He was committed to the state hospital for restoration,
but eventually the court ordered that he be released to the
community for restoration. At the time of his release, defendant’s commitment had reached the maximum period of
time permitted under ORS 161.370(10).1 Several months
after his release to the community, the trial court allowed
the state to dismiss the original charges without prejudice
and to refile some of them the same day. Defendant later
moved to dismiss those refiled charges pursuant to ORS
161.370(13), but the trial court denied the motion. Shortly
thereafter, defendant was found fit to proceed and entered a
conditional guilty plea to one count of resisting arrest, ORS
162.315, reserving his right to appeal the court’s ruling on
his motion to dismiss the refiled charges.
Defendant now appeals, asserting that the trial
court wrongly denied his motion to dismiss the refiled
misdemeanor charges because he had been committed for
the maximum period of time under ORS 161.370(10)2 and
was therefore entitled to dismissal of the charges under
1
The statutes at issue in this case, former ORS 161.370(7) (2017) and former
ORS 161.370(10) (2017), were renumbered in 2019. See Or Laws 2019, ch 538, § 2.
The bill did not substantively change any of the applicable statutory provisions,
and the parties refer to the 2019 version of the statute throughout their briefs on
appeal. Since 2019, the statute has again been renumbered. See Or Laws 2021,
ch 395, §§ 5, 7. The 2021 version of the statute is broken down into two numbers,
ORS 161.370 (2021) and ORS 161.371 (2021). The relevant subsections, former
ORS 161.370(10) (2019) and former ORS 161.370(13) (2019) are substantively similar. Thus, for clarity and conformance with the parties’ arguments on appeal, we
refer to the 2019 version of the statutes throughout this opinion.
2
ORS 161.370(10)(a) provides:
“A defendant who remains committed under subsection (9) of this section
shall be discharged within a period of time that is reasonable for making a
determination concerning whether or not, and when, the defendant may gain
or regain capacity. However, regardless of the number of charges with which
the defendant is accused, in no event shall the defendant be committed for
longer than whichever of the following, measured from the defendant’s initial
custody date, is shorter:
“(A) Three years; or
“(B) A period of time equal to the maximum sentence the court could
have imposed if the defendant had been convicted.”
692 State v. Givens
ORS 161.370(13).3 The state disagrees, arguing that ORS
161.370(13) does not require dismissal of charges when
a defendant is no longer committed to the state hospital.
After considering the text of the statute in its context, along
with relevant legislative history, we conclude that the trial
court is not required to dismiss refiled charges under ORS
161.370(13) when a defendant is not presently committed to
the state hospital. Accordingly, we affirm.
The facts of the case are largely procedural and
undisputed. Based on an incident in June 2017, the state
charged defendant with several misdemeanors, including
two counts of attempted assault of a public safety officer
(Class A misdemeanors), one count of resisting arrest (Class A
misdemeanor), one count of assault in the fourth degree
(Class A misdemeanor), one count of criminal trespass in
the second degree (Class C misdemeanor), and one count of
harassment (Class B misdemeanor). On September 27, 2017,
the trial court found that defendant was unfit to proceed
to trial, suspended the charges against him, and committed him to the Oregon State Hospital.4 On December 28,
2018, the court ordered that defendant be transported to
the local jail, pending a hearing in regard to his release to
community restoration. And, on January 11, 2019, the court
ordered that defendant be released to the community for
restoration services.5 At the time of defendant’s release, he
3
Pursuant to ORS 161.370(13),
“If at any time the court determines that the defendant lacks the capacity to stand trial, the court shall further determine whether there is a substantial probability that the defendant, in the foreseeable future, will gain
or regain the capacity to stand trial and whether the defendant is entitled
to discharge under subsection (10) of this section. If the court determines
that there is no substantial probability that the defendant, in the foreseeable
future, will gain or regain the capacity to stand trial or that the defendant
is entitled to discharge under subsection (10) of this section, the court shall
dismiss, without prejudice, all charges against the defendant[.]”
4
Under ORS 161.370(3)(a), when the court makes the necessary findings to
commit the defendant, “the court shall commit the defendant to the custody of
the superintendent of a state mental hospital or director of a facility designated
by the Oregon Health Authority if the defendant is at least 18 years of age[.]” We
refer to the state hospital as shorthand throughout our opinion.
5
Under ORS 161.370(2)(c)(B), if the court determines that the defendant
lacks fitness to proceed, the court must hold a hearing at which the court and
the parties will determine the appropriate action in the case, which may include
“[c]ommunity restoration as recommended by the community health program
Cite as 321 Or App 689 (2022) 693
had been committed for a total of 458 days, which is beyond
the 364-day maximum sentence he could have received for
the misdemeanor charges against him. See ORS 161.370(10)
(stating that a defendant may only be committed for up to
three years or for the maximum time the court could have
imposed upon conviction, whichever is less).6
Five months later, while participating in community
restoration, defendant moved to dismiss the charges pursuant to ORS 161.370(13) on the basis that he was entitled
to discharge under ORS 161.370(10). The state opposed the
motion but filed its own motion to dismiss on other grounds.
Defendant remained in community restoration until May 29,
when the court granted the state’s motion and dismissed
the charges without prejudice. On that same day, the state
refiled some of the same charges against defendant—that is,
the Class A misdemeanors, based on the same underlying
events.7
Defendant then filed a second motion to dismiss the
refiled charges against him, which is the subject of the case
before us. He contended that he was entitled to dismissal
because he had been committed for the maximum allowable
time under ORS 161.370(10) on the charges the state had
originally filed, he remained unfit to stand trial, and “things
don’t start over just because [the state] dismissed the case
and re-filed it.” In light of that, according to defendant, he
was entitled to dismissal of the refiled charges under ORS
161.370(13). He further argued that dismissal was necessary “whether he’s on community restoration or whether he’s
director or designee.” For community restoration to be a viable action option,
the court must receive a recommendation from “a community mental health program director or the director’s designee, and from any local entity that would be
responsible for supervising the defendant … concerning whether services and
supervision necessary to safely allow the defendant to gain or regain fitness to
proceed are available in the community.” ORS 161.370(2)(b). Further, the court
“shall consider the primary and secondary release criteria as defined in ORS
135.230” in making its determination. Accordingly, as we understand it, community restoration is a form of conditional release where an unfit defendant is
ordered released to the community and ordered to comply with release conditions, including the community restoration services.
6
The circumstances that caused defendant to be committed beyond the
allowable statutory maximum period are not part of the record or relevant to any
of the issues on appeal.
7
The state did not refile the Class B or Class C misdemeanor charges.
694 State v. Givens
in the State Hospital,” and that it would “completely frustrate” the legislative purpose if the state were allowed to get
around the statutory time limits by dismissing and refiling
charges. Defendant asked that, in the alternative, the court
find him unfit to proceed to trial and order that he participate in community restoration.
In response, the state explained that its aim was to
get defendant “in a place where we can prosecute him and
find justice.” The state contended that, based on the plain
language of ORS 161.370(13), dismissal is proper only if, at
the time of the ORS 161.370(10) analysis, the defendant was
actually committed to the state hospital. Because defendant
was no longer committed, dismissal was not proper. The
state further asserted that dismissal under ORS 161.370(13)
is without prejudice and therefore it could refile the charges
within the statute of limitations.
The court found that defendant was unfit to stand
trial and ordered that he participate in community restoration. The court also denied defendant’s motion to dismiss,
reasoning that the state had the “better argument.” The
court explained that, under a plain reading of the statute,
dismissal would not be appropriate because defendant was
no longer committed to the state hospital or in the “custody
of the Superintendent.”
About two months later, the court found defendant
fit to proceed and, soon after, he entered a conditional guilty
plea for one count of resisting arrest, reserving his right to
appeal his second motion to dismiss. Pursuant to the plea
agreement, the court imposed 24 months of probation and a
$100 fine and dismissed the remaining counts.
We turn to the issue on appeal. We review a trial
court’s ruling on a motion to dismiss for legal error. State
v. Barnes, 276 Or App 296, 300,
366 P3d 1198 (2016). As he
did below, defendant asserts that because he was committed for the maximum period of time allowable under ORS
161.370(10) on the originally filed charges, he is entitled
to dismissal of the refiled charges under ORS 161.370(13).
Defendant points to the text, context, and legislative history
of ORS 161.370 to argue that, so long as he remained unfit to
stand trial, ORS 161.370(13) required dismissal regardless
Cite as
321 Or App 689 (2022) 695
of whether he was discharged from commitment and the
charges were dismissed and refiled. The state also raises
the same arguments it did below, contending that, under the
plain terms of the statute and its related context, for a dismissal to be mandated by ORS 161.370(13), the defendant
must be committed to the state hospital “at the time of the
dismissal.”
The issue before us is one of first impression and is
dependent on the proper construction of ORS 161.370(13).
When interpreting a statute, our goal is to “ascertain the
meaning of the statute most likely intended by the legislature that adopted it.” State v. Cloutier, 351 Or 68, 75,
261
P3d 1234 (2011) (citing State v. Gaines,
346 Or 160, 171-73,
206 P3d 1042 (2009)). To do so, we examine the text in context, as well as any pertinent legislative history as needed.
Vasquez v. Double Press Mfg., Inc.,
364 Or 609, 615,
437 P3d
1107 (2019). Of course, text and context must be given “primary weight” in the analysis.
Id. (internal quotation marks
omitted). Accordingly, we begin by briefly describing the
statutory framework as a whole.
A defendant who lacks the fitness to stand trial may
not be criminally prosecuted. Thus, when a defendant’s fitness is called into question, either by the parties or by the
court, the court must determine whether the defendant is fit
to proceed to trial. ORS 161.370(1)(a); see also ORS 161.360(2)
(the court may find a defendant unfit if, as a result of a qualifying mental disorder, the defendant is unable to understand the nature of the proceedings against him or unable
to assist or participate in his defense); see also ORS 161.365
(setting out the procedure for determining issue of fitness
to proceed). If the court finds that the defendant lacks the
capacity to stand trial, the court must suspend the criminal
proceedings and conduct a hearing to determine how best to
proceed. ORS 161.370(2)(a). To that end, with certain limiting factors, the court is given a range of actions it may consider. See ORS 161.370(2)(c) (“In determining the appropriate
action, the court shall consider the primary and secondary
release criteria …, the least restrictive option appropriate
for the defendant, the needs of the defendant and the interests of justice.”). Among other actions, the court may order
that the defendant be committed to gain or regain fitness
696 State v. Givens
to proceed, undergo community restoration, be released on
supervision, face civil commitment proceedings against him,
or have the charges dismissed. Id. The court must obtain
a recommendation from the local entity to assess whether,
if the defendant would be released, appropriate community
restoration services are present and available in the community. ORS 161.370(2)(b). The court must also make a finding about whether the defendant needs (or does not need) a
“hospital level of care.” ORS 161.370(3)(a). Where the court
makes the necessary findings to commit the defendant, the
court must commit the defendant to the custody of a state
mental hospital or another designated facility.
Id.
At any point, if the court determines that a committed defendant has gained or regained fitness to proceed,
unless the court concludes that so much time has elapsed
that it would be unjust to resume the charges against him,
the criminal proceedings are resumed. ORS 161.370(7).
Consequently, the hospital superintendent or facility director is required to routinely evaluate a committed defendant
for “the purpose of determining whether there is a substantial probability that, in the foreseeable future, the defendant will have the capacity to stand trial.” ORS 161.370(8).
The superintendent or director must immediately notify the
court if the defendant, at any time, gains or regains fitness
or will never have the capacity to stand trial. Id. On the
other hand, if the superintendent or director determines
that there is a foreseeable, substantial probability that the
defendant will gain or regain the capacity to stand trial,
the defendant must remain in commitment and continue
treatment designed for that purpose, unless the court orders
otherwise. ORS 161.370(9)(a). Further, when a defendant is
committed and receiving treatment, the superintendent or
director must consider whether the defendant continues to
require a hospital level of care and whether there are available services in the community to meet the defendant’s
needs. ORS 161.370(9)(b). The court may release the defendant for treatment in the community if such treatment is
appropriate and available.
Id.
For a defendant who remains in commitment, due
process limits how much time the state can keep him in
Cite as 321 Or App 689 (2022) 697
custody. See Jackson v. Indiana,
406 US 715, 738,
92 S Ct
1845,
32 L Ed 2d 435 (1972) (holding that a defendant in commitment “cannot be held more than the reasonable period of
time necessary to determine whether there is a substantial
probability that he will attain that capacity in the foreseeable
future”). Therefore, under ORS 161.370(10)(a), a defendant
who remains committed under ORS 161.370(9) must be discharged “within a period of time that is reasonable for making a determination concerning whether or not, and when,
the defendant may gain or regain capacity.” In “no event”
shall a defendant be committed for longer than three years or
“[a] period of time equal to the maximum sentence the court
could have imposed if the defendant had been convicted,”
whichever is shorter. Id.; see also ORS 161.370(10)(b)(A)
(providing that for purposes of calculating the maximum
period of commitment described in ORS 161.370(10)(a), the
initial custody date is the date the defendant is first committed on any charges alleged by the state); ORS 161.370
(10)(b)(B) (stating that, in calculating the maximum period
of commitment under ORS 161.370(10)(a), the defendant is
to be given credit against each charge alleged for each day
the defendant is committed, whether the days are consecutive or interrupted by a period of time that the defendant
has gained or regained fitness and, unless the defendant
commits certain serious crimes, for each day the defendant
is held in jail before or after the date the defendant is first
committed).
If the maximum time period has elapsed, the hospital or facility must discharge the defendant, see ORS
161.370(10), but must also notify the court 30 days beforehand, see ORS 161.370(11). If the court receives notice
from the superintendent or director under subsection (8)—
concerning the defendant’s progress or lack thereof—or
subsection (11)—that the defendant has been committed
for the maximum period of time allowable—the court shall
determine whether the defendant presently has the capacity to stand trial. ORS 161.370(12). Further, under ORS
161.370(13), the court has a continuing obligation to assess
the defendant’s progress and the likelihood that he will
gain or regain the capacity to stand trial. ORS 161.370(13)
provides:
698 State v. Givens
“If at any time the court determines that the defendant
lacks the capacity to stand trial, the court shall further
determine whether there is a substantial probability that
the defendant, in the foreseeable future, will gain or regain
the capacity to stand trial and whether the defendant is
entitled to discharge under [ORS 161.370(10)]. If the court
determines that there is no substantial probability that the
defendant, in the foreseeable future, will gain or regain the
capacity to stand trial or that the defendant is entitled to
discharge under [ORS 161.370(10)], the court shall dismiss,
without prejudice, all charges against the defendant and:
“(a) Order that the defendant be discharged; or
“(b) Initiate commitment proceedings under ORS
426.070 or 427.235 to 427.290.”
If a defendant is convicted of an offense after being committed to a state hospital or facility, any term of incarceration
imposed by the court is reduced by the amount of time the
defendant was committed. ORS 161.370(15).
Turning to the parties’ arguments, we begin by
looking to the plain terms of the dismissal statute, ORS
161.370(13). See PGE v. Bureau of Labor Industries, 317 Or
606, 610,
859 P2d 1143 (1993) (Generally, “the text of the
statutory provision itself is the starting point for interpretation and is the best evidence of the legislature’s intent.”).
As we described above, under ORS 161.370(13), whether
the trial court must dismiss the charges against an unfit
defendant occurs in two circumstances. The first is when
the court determines that there is no foreseeable, substantial probability that the defendant will gain or regain fitness
to proceed to trial. ORS 161.370(13). The second—which
defendant contends was prompted here—is when the defendant is “entitled to discharge under subsection (10).”
Id.
Accordingly, whether the trial court erred in denying defendant’s motion to dismiss under ORS 161.370(13) depends on
whether defendant was “entitled to discharge” according to
the terms of ORS 161.370(10).
ORS 161.370(10)(a) states that a defendant “who
remains committed under subsection (9)” must be discharged within a reasonable period of time, no longer than
three years or the maximum period of time the court could
Cite as 321 Or App 689 (2022) 699
have imposed upon conviction. It is undisputed that, here,
defendant satisfies the last part of the provision, in that he
had been committed for the maximum period of time the
court could have imposed for the charged misdemeanors.
Defendant argues, however, that the time limit continues to
apply so long as the state is prosecuting the same charges,
and, thus, he is still “entitled to discharge,” whether or not
he remains committed. To support his argument, defendant
points to the statutory direction to include all of the time
that a defendant has been committed or jailed for any of the
charged offenses when calculating the maximum allowable
commitment time and the fact that that time must be credited against each count. See ORS 161.370(10)(b). The state
generally agrees that the time limits apply to the refiled
charges but argues that, under ORS 161.370(10), a defendant is entitled to discharge only when he “remains committed” to the state hospital.
We agree with the state. ORS 161.370(10) provides
for discharge of a defendant who “remains committed”
under ORS 161.370(9), evincing a legislative intention that
a defendant is entitled to discharge only when he is presently
committed. See Webster’s Third New Int’l Dictionary 1919
(unabridged ed 2002) (defining “remain” as “to stay in the
same place or with the same person or group” and “to continue unchanged in form, condition, status, or quantity”).
Reading ORS 161.370(10) together with ORS 161.370(9)
further suggests that a defendant becomes entitled to discharge only when he is still committed. In particular, ORS
161.370(9) describes the process required to enable a committed defendant either to become fit to proceed to trial or
to be placed in less restrictive restorative care, i.e., community restoration or supervised release. Therefore, the use of
the words “remains committed under subsection (9)” indicate that the legislature intended to provide for discharge
when the process of enabling the defendant to become fit for
trial or to be transferred to less restrictive restorative care
has not been successful. That is, a defendant who must be
discharged under ORS 161.370(10) is one who is presently
committed—not one who is in community restoration or on
supervised release—and has also been committed for the
maximum allowable period of time.
700 State v. Givens
Defendant contends that the word “entitled” in ORS
161.370(13) indicates that, once a defendant becomes subject
to discharge, he remains entitled indefinitely, regardless of
whether he is still committed. In other words, he is entitled
to discharge and, in turn, entitled to dismissal under ORS
161.370(13) because he has already been committed for the
allowed period of time. However, defendant’s reading omits
the limitation in ORS 161.370(13) that dismissal is required
where the defendant is entitled to discharge under ORS
161.370(10). See ORS 174.010 (in construing a statute, the
court may not insert what has been omitted or omit what
has been inserted); see also Arken v. City of Portland, 351 Or
113, 156,
263 P3d 975 (2011), adh’d to on recons by Robinson
v. Public Employees Retirement Board,
351 Or 404,
268 P3d
567 (2011) (noting the “cardinal rule of statutory construction to give significance and effect to every part of a statute” and the “well established principle to avoid interpretations of statutes that render portions of them redundant”).
Looking to the entirety of the provision, the only plausible
reading is that, at the time the trial court is making its
determination under ORS 161.370(13), the defendant must
also satisfy the requirements of ORS 161.370(10). Defendant
was not committed to the state hospital when the court made
its decision. Therefore, he was not, at that time, eligible for
discharge as contemplated by ORS 161.370(10) and, in turn,
not “entitled to discharge” for purposes of ORS 161.370(13).8
Such a reading is also supported by the related context. As the state points out, unlike commitment to the state
hospital, no provision of ORS 161.370 limits the period of
time a defendant can be treated in the community nor does
any provision mandate dismissal when a defendant is unfit
to proceed but can still receive community restorative services. Cf. ORS 161.370(7) (authorizing the court to dismiss
8
Defendant asserts that the state is somehow getting around the statutory
time limits set out in ORS 161.370(10) by dismissing the charges and refiling
the same charges and that the state would then be able to commit a defendant
longer than constitutionally permissible. But, as we read it and the state appears
to concede, if ORS 161.370(10) applies only when a defendant is presently committed, were the state to dismiss and then refile the charges and the court were
to recommit the defendant who had been committed for the maximum period of
time, the defendant would then be subject to discharge under subsection (10) and
dismissal under subsection (13). Thus, contrary to defendant’s assertions, the
defendant would not be committed for longer than due process allows.
Cite as 321 Or App 689 (2022) 701
charges after a defendant has been found fit but it would
be unjust to resume the proceeding in light of the passage
of time); ORS 161.370(2)(c)(F) (authorizing the court to dismiss charges as appropriate action after it is determined
that defendant lacks fitness to proceed). The only limiting
factor applicable to when a defendant is in community restoration is the court’s continuing obligation to assess whether
the defendant will likely gain or regain the capacity to stand
trial. See ORS 161.370(13); see also ORS 161.370(4)(b), (c).
Thus, where a defendant is in community restoration and
found unlikely to be restored in the foreseeable future, the
charges must be dismissed. See ORS 161.370(13) (stating
that the court must dismiss charges against an unfit defendant where the court determines that there is no foreseeable, substantial probability that the defendant will gain
or regain fitness to stand trial). But if there is a likelihood
that the defendant will become fit in the foreseeable future,
he must continue treatment in the community. See ORS
161.370(4)(a) (“[I]f the court determines that care other than
commitment for incapacity to stand trial would better serve
the defendant and the community, the court shall release
the defendant on supervision for as long as the unfitness
endures.”); ORS 161.370(4)(c) (“A community mental health
program director providing treatment to the defendant in
the community shall notify the court if the defendant gains
or regains fitness to proceed.”).
Defendant contends that the trial court’s reading
of the statute would render the dismissal provision of ORS
161.370(13) “superfluous.” We disagree. If the court dismisses
charges for a defendant who was committed beyond the statutory time limits, but there is still a substantial probability
that the defendant may become fit to proceed in the foreseeable future by receiving treatment in community care—as
is the case here—were the state to refile the charges at that
point, the court could order the defendant to participate in
community restoration services and continue his treatment
towards restoring his capacity. In that regard, the state preserves the defendant’s due process rights by ensuring that
he will not be held in commitment beyond the statutory
time limit, while also preserving the state’s ability to bring
the defendant to trial. Thus, allowing the state to refile the
702 State v. Givens
charges does not contradict the statutory mandate for dismissal under ORS 161.370(13) or render it superfluous.
Lastly, defendant argues that dismissal was required
because the legislature intended for the state to refile
charges dismissed under ORS 161.370(13) only if and when
the defendant is found competent to stand trial, provided
that the statute of limitations has not passed. In defendant’s
view, the text and related context shows that the purpose of
dismissal under ORS 161.370(13) is to remove the defendant
from the reach of the criminal legal system unless and until
he later becomes fit to stand trial. We are unconvinced by
defendant’s arguments. Nothing in the statute or its related
context prohibits the state from refiling charges unless or
until the defendant gains or regains competency. See State
v. Patton, 237 Or App 46, 50-51,
238 P3d 439 (2010), rev den,
350 Or 131 (2011) (“We are prohibited, by statutory command and by constitutional principle, from adding words to
a statute that the legislature has omitted.”). Conversely, the
statute explicitly mandates that charges be dismissed when
a defendant is entitled to discharge and remains committed.
Defendant also points to legislative history to support his argument that legislators intended to prohibit the
state from refiling charges until a defendant was found fit
to stand trial. See State v. Blair, 348 Or 72, 80,
228 P3d
564 (2010) (following Gaines, “we may always consider pertinent legislative history,” even in the apparent absence
of ambiguity). Review of the relevant legislative history
shows that proponents were concerned about ensuring
that the statute conformed with the due process standards as set out in Jackson. And, in considering the proposed time limits, committee members wanted to guarantee that the state would still be allowed to refile charges,
including in circumstances where a defendant regains
capacity to stand trial within the statute of limitations for
serious felonies. See Tape Recording, House Committee on
Judiciary, Subcommittee on Crime and Corrections, SB 501,
May 26, 1993, Tape 115, Side B (statement of Dale Penn that
“[d]ismissal without prejudice allows criminal charges to be
brought if the high-profile murder defendants regain ability
to aid and assist”). But there is no indication of an intent to
Cite as
321 Or App 689 (2022) 703
prohibit the state from refiling charges where a defendant
remained unfit to stand trial at the time he was discharged
from commitment.
Further, contrary to defendant’s assertions, the
three-year time limit was included not to prevent the refiling of misdemeanor crimes subject to lesser statutes of limitations but instead as recommended as the general time
it takes to either restore a defendant in order to proceed to
trial or to determine that the defendant will not be restored
in the foreseeable future. See id. (statement of Richard
Hulteng, Mental Health Division, explaining why the three-year maximum period of time a defendant could be held in
commitment was included: “If the hospital can do anything
for the person, they will be able to get results within three
years. The charges can be reinstated.”). It is not our role
to place limitations on the state’s ability to refile charges
when there is no indication that the legislature had such
an intent. See Halperin v. Pitts,
352 Or 482, 495,
287 P3d
1069 (2012) (“Legislative history may be used to identify or
resolve ambiguity in legislation,” but we may not refer to it
to “rewrite” legislation.); see also Gaines,
346 Or at 171 (the
court considers legislative history only “for what it’s worth,”
and “what it is worth is for the court to determine”).
In sum, because defendant was not committed at
the time, as a matter of law, the trial court was not required
to dismiss the refiled charges under ORS 161.370(13) solely
because defendant remained unfit for trial and had previously been committed for the maximum period of time allowable under ORS 161.370(10). We therefore reject defendant’s
argument that the trial court erred by denying his motion to
dismiss.
Affirmed.
