Oregon Supreme Court Announces 60-Day Limit on Pretrial Custody Applies to Retrials
by Matt Clarke
The Supreme Court of Oregon held that the provision of ORS 136.290 limiting a criminal defendant’s pretrial custody to no more than 60 days also applies to retrials.
Anthony Lee Benjamin IV was tried for second-degree murder. A jury acquitted him of that charge but found him guilty of the lesser-included offense of first-degree manslaughter. The court sentenced him to 200 months’ imprisonment.
In federal court, Benjamin successfully sought habeas corpus relief based on ineffective assistance of counsel. “The federal court’s order terminated the state’s authority to continue to hold defendant in custody for the purpose of serving his manslaughter sentence. Therefore, the state could not continue to hold defendant in custody unless it chose to retry him and hold him pending the retrial.”
Benjamin was transferred into the custody of the Multnomah County Sheriff to await retrial. The trial court determined that he was indigent and set his bail at $500,000. After being held in excess of 60 days, Benjamin filed motions for his release pursuant to the 60-day limit under ORS 136.290. The court denied the motions, ruling that the 60-day limit does not apply to retrials. With the assistance of Portland attorney Megan E. McVicar, Benjamin filed a petition for a writ of habeas corpus in the Oregon Supreme Court.
While the petition was pending, Benjamin “pleaded no contest to the manslaughter charge and the trial court sentenced him to 120 months in prison, which was less time than defendant had already served for that offense. As a result, no trial was held and defendant was released from custody.” Normally, this would moot his habeas action, but the Supreme Court exercised its discretion to proceed pursuant to ORS 14.175 because the case contained issues that were “capable of repetition” yet “evading judicial review.” Couey v. Atkins, 355 P.3d 866 (Ore. 2015).
The Court noted that, under the general pretrial release statutes, ORS 135.230 to 135.295, a court must determine the terms of release—“security,” “conditional,” or personal recognizance—for a defendant who is eligible for release. All persons are eligible for release unless charged with murder, treason, or a violent felony and the court makes certain findings pursuant to ORS 135.240(2), (4) which was not done in this case. Further, the court must impose the “least onerous condition reasonably likely to ensure the safety of the public and the victim and the person’s later appearance.” ORS 135.245(3).
“In addition to the general pretrial release statutes, the legislature has enacted the statute at issue in this case, ORS 136.290, which establishes a 60-day limit on pretrial custody and a related statute, ORS 136.295, which sets out exception to the 60-day limit, identifies periods that do not count toward the limit, and provides for extensions of the limit,” the Court observed. The Court stated that, taken together, the statutes require that a defendant be released on personal recognizance, in the custody of a third party, or “upon whatever additional reasonable terms and conditions” if trial is not commenced within 60 days of the person being taken into custody.
The State argued that ORS 136.290 does not apply to retrials because a person being retried is not “arrested,” as provided in the statute. Following a long and detailed analysis of the statute’s text, the Court disagreed.
Similarly, after an extensive discussion of the text, context, and legislative history of the statute, the Court held that it clearly places a 60-day limit on pretrial custody and contains no exception for retrials, meaning that the limit also applies to retrials. The Court instructed that on retrial, custody begins when the previous sentence is voided. From that point, the defendant is in custody, and the 60-day limit applies. Thus, the Court held the trial court erred in ruling that the 60-day limit does not apply to retrials and denying the defendant’s motions for release.
Accordingly, because the defendant had already served his time and was released, the Court denied his habeas petition as moot. See: Benjamin v. O’Donnell, 557 P.3d 1089 (Ore. 2024).
Editor’s note: Anyone with an interest in the fine details of the Court’s statutory interpretation of ORS 136.290 based on the text of the statute, its context and related statutes, and legislative history—that is, the methodology set forth in State v. Gaines, 206 P.3d 1042 (Ore. 2009)—is encouraged to read the Court’s full opinion.
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