739
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
Submitted October 6, reversed November 16, 2022
In the Matter of B. T.,
a Person Alleged to have Mental Illness.
STATE OF OREGON,
Respondent,
v.
B. T.,
Appellant.
Lane County Circuit Court
22CC00525; A178036
R. Curtis Conover, Judge.
Joseph R. DeBin and Multnomah Defenders, Inc. filed
the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Greg Rios, Assistant Attorney
General, filed the brief for respondent.
Before Shorr, Presiding Judge, and Mooney, Judge, and
Pagán, Judge.
SHORR, P. J.
Reversed.
740 State v. B. T.
SHORR, P. J.
Appellant appeals a judgment committing him to
the custody of the Oregon Health Authority for a period of
time not to exceed 180 days, 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 physician’s hold on
January 21, 2022. Appellant’s consent was sought for a
14-day diversion period pursuant to ORS 426.237, but he
refused to consent to the diversion. No steps were taken to
provide appellant with a hearing within five judicial days of
the hold. The court ultimately held a hearing on February 15,
2022. As set forth in State v. L. O. W.,
(2018), a court lacks authority to hold a mental
commitment hearing under ORS 426.095 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 entitled 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. M. Z.,
