(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 defendants possible lack of fitness to proceed has been raised by the defendant or the defendants counsel, until a final determination regarding the defendants 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 defendants qualifying mental disorder, partial responsibility, diminished capacity, insanity or other mental defense is raised by the defendant or the defendants 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 defendants failure to appear. (d) A period of time during which the defendants location is known but the defendants 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 defendants location is unknown and: (A) The defendant has attempted to avoid apprehension or prosecution; or (B) The defendants 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 courts 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 defendants 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 defendants right to a speedy trial within the time limit required in ORS 135.746 and the consequences of the defendants 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. Note: See note under 135.746.
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