FILED: August 30, 2000

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Appellant,

v.

JOHN KERRY WEESE,

Respondent.

(98-7165; CA A107747)

Appeal from Circuit Court, Columbia County.

Argued and submitted July 31, 2000.

Berkeley A. Smith, Judge.

David J. Amesbury, Assistant Attorney General, argued the cause for appellant. With him on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Meredith Allen, Deputy Public Defender, argued the cause for respondent. With her on the brief was David E. Groom, Public Defender.

Before Haselton, Presiding Judge, and Wollheim, Judge, and Warren, Senior Judge.

PER CURIAM

Order of dismissal with prejudice reversed; remanded for entry of order of dismissal without prejudice.

PER CURIAM

The state appeals from the trial court's pretrial order dismissing with prejudice a charge of reckless endangerment of highway workers. ORS 811.231. A detailed description of the circumstances attending the dismissal would benefit neither the bench nor bar. It suffices to say that there is no evidence in this record that the state's inability to proceed was the product of "inexcusable neglect" by the prosecutor, that defendant would suffer actual prejudice due to a continuance or a dismissal without prejudice, or that defendant's right to speedy trial would be compromised by a dismissal without prejudice. Consequently, this case is materially, functionally indistinguishable from State v. Hilligoss, 168 Or App 285, 287, ___ P2d ___ (2000), and cases cited therein. Accordingly, the trial court abused its discretion in ordering the dismissal with prejudice.

Order of dismissal with prejudice reversed; remanded for entry of order of dismissal without prejudice.


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