State v. J. O. B. (In re J. O. B.), 436 P.3d 91, 296 Or. App. 153 (2019)

Feb. 13, 2019 · Court of Appeals of Oregon · A168501

436 P.3d 91, 296 Or. App. 153

In the MATTER OF J. O. B., a Person Alleged to Have Mental Illness.

State of Oregon, Respondent,
v.
J. O. B., Appellant.

A168501

Court of Appeals of Oregon.

Submitted December 7, 2018.
February 13, 2019

Joseph R. DeBin and Multnomah Defenders, Inc., filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Adam Holbrook, Assistant Attorney General, filed the brief for respondent.

Before Ortega, Presiding Judge, and Egan, Chief Judge, and Powers, Judge.

PER CURIAM

Appellant seeks reversal of a judgment committing appellant to the Mental Health Division for a period not to exceed 180 days and an order prohibiting appellant from purchasing or possessing a firearm based upon a finding that appellant has a mental illness. ORS 426.130. Appellant's commitment hearing was postponed by the trial court "due to Court availability"-on the court's own motion-to a date that was more than five judicial days after appellant was taken into custody for involuntary treatment. Appellant moved to dismiss the civil commitment proceeding for failure to hold the hearing within five judicial days. See, e.g. , State v. E. R. , 283 Or. App. 282, 283, 387 P.3d 497 (2016) (citing ORS 426.232(2), ORS 426.233(1), and ORS 426.095(2)(a) in reversing a commitment order because the hearing was held more than five days after the appellant was taken involuntarily into custody for mental health treatment).

The court denied the motion to dismiss on the basis that the court's unavailability was good cause for postponing the hearing. However, although ORS 426.095(2)(c) permits a "good cause" postponement of a commitment hearing past the five-judicial-day deadline, the court is not statutorily permitted to request postponement. See ORS 426.095 (2)(c)(A) - (C) (person alleged to have mental illness, that person's legal counsel or guardian, or the person representing the state are allowed to request a postponement for good cause). The state concedes that the court erred in failing to dismiss appellant's case for that reason, and we accept the state's concession. We therefore reverse the judgment of commitment and the order prohibiting appellant from purchasing or possessing a firearm. See State v. L. O. W. , 292 Or. App. 376, 424 P.3d 789 (2018) (reversing order of commitment when the appellant was involuntarily hospitalized for more than five days without a hearing); State v. R. C. S. , 291 Or. App. 489, 490, 415 P.3d 1164 (2018) (reversing both the order of commitment and the order prohibiting the appellant from purchasing and possessing firearms).

Reversed.