This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1).

Submitted October 6, reversed November 16, 2022

In the Matter of B. T., a Person Alleged to have Mental Illness.

STATE OF OREGON, Respondent, v. B. T., Appellant.

Lane County Circuit Court 22CC00525; A178036

R. Curtis Conover, Judge.

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

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

Before Shorr, Presiding Judge, and Mooney, Judge, and Pagán, Judge.

SHORR, P. J.

Reversed.

740 State v. B. T.

SHORR, P. J.

Appellant appeals a judgment committing him to the custody of the Oregon Health Authority for a period of time not to exceed 180 days, based on a finding that he has a mental illness. ORS 426.130. He asserts that the trial court erred in failing to dismiss the case because he had been held for more than five judicial days prior to the hearing. The state concedes the error. We accept the state’s concession.

Appellant was detained on a physician’s hold on January 21, 2022. Appellant’s consent was sought for a 14-day diversion period pursuant to ORS 426.237, but he refused to consent to the diversion. No steps were taken to provide appellant with a hearing within five judicial days of the hold. The court ultimately held a hearing on February 15, 2022. As set forth in State v. L. O. W., 292 Or App 376, 381, 424 P3d 789 (2018), a court lacks authority to hold a mental commitment hearing under ORS 426.095 when a person has been involuntarily hospitalized for longer than five judicial days, and a person held longer than five judicial days with- out a hearing is entitled to dismissal. We conclude that the error is apparent on the face of the record and exercise our discretion to correct it in light of the gravity of the error.

See State v. M. Z., 307 Or App 755, 756, 476 P3d 1258 (2020) (exercising discretion to correct similar error).

Reversed.