IN RE: D. T. (2021)

Appellant seeks reversal of an order committing him to the Mental Health Division for a period not to exceed 180 days and a supplemental order prohibiting him from purchasing or possessing firearms, based on a finding that he suffers from a mental illness. ORS 426.130. Appellant was hospitalized based on a physician's hold on August 11, 2020. Several days thereafter, the court, on its own motion, postponed appellant's mental commitment hearing until August 20, then later, until August 21. Appellant asserts that the court erred in doing so.

Appellant did not preserve any issue concerning the postponement of his hearing in the trial court, but he argues on appeal that the court plainly erred in postponing the hearing on its own motion and not holding a hearing within five days of his detention. The state concedes the error, and we accept that concession. A court is required to hold a hearing such as this within five judicial days of the appellant's detention. State v. L. O. W., 292 Or. App. 376, 381, 424 P.3d 789 (2018). A court may postpone such a hearing for an additional five days at the request of a party, based on a finding of “good cause.” ORS 426.095(2)(c). As we explained in State v. J. O. B., 296 Or. App. 153, 154, 436 P.3d 91 (2019), ORS 426.095(2)(c) does not authorize a court to postpone a hearing on its own motion. We conclude that the error is plain, and we exercise discretion to correct the error due to the gravity of the error. See State v. R. W. S., 292 Or. App. 405, 406, 419 P.3d 804 (2018) (correcting similar error due to gravity of error).

Reversed.

PER CURIAM