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State v. Mortensen

Supreme Court of Nebraska

January 10, 2014

State of Nebraska, appellee,
v.
Randy L. Mortensen, appellant.

Page 394

[Copyrighted Material Omitted]

Page 395

Petition for further review from the Court of Appeals, SIEVERS, PIRTLE, and RIEDMANN, Judges, on appeal thereto from the District Court for Butler County, MARY C. GILBRIDE, Judge. Judgment of Court of Appeals affirmed.

Robert J. Bierbower for appellant.

Jon Bruning, Attorney General, and Stacy M. Foust for appellee.

Heavican, C.J.,Wright, Connolly, Stephan, McCorack, Miller-Lerman, and Cassel, JJ.

Syllabus by the Court

1. Judgments: Speedy Trial: Appeal and Error. As a general rule, a trial court's determination as to whether charges should be dismissed on speedy trial grounds is a factual question which will be affirmed on appeal unless clearly erroneous.

2. Statutes: Appeal and Error. The meaning and interpretation of a statute are questions of law. An appellate court independently reviews questions of law decided by a lower court.

3. Speedy Trial. To calculate the deadline for trial under the speedy trial statutes, a court must exclude the day the State filed the information, count forward 6 months, back up 1 day, and then add any time excluded under Neb.Rev.Stat. § 29-1207(4) (Cum.Supp.2012).

4. Speedy Trial. Under the speedy trial statutes, it is axiomatic tat an accused cannot and should not be permitted to take advantage of a delay where the accused is responsible for the delay by either action or inaction.

Page 396

5. Speedy Trial: Waiver. The statutory right to a speedy trial is not unlimited and can be waived.

6. Statutes: Appeal and Error. An appellate court will not read into a statute a meaning that is not there.

7. Speedy Trial: Waiver. A defendant waives his or her statutory right to a speedy trial when the period of delay resulting from a continuance granted at the request of the defendant or his or her counsel extends the trial date beyond the statutory 6-month period.

8. Speedy Trial: Waiver: Appeal and Error. A defendant's motion to discharge based on statutory speedy trial grounds will be deemed to be a waiver of that right under Neb.Rev.Stat. § 29-1207(4)(b) (Cum.Supp.2012) where (1) the filing of such motion results in the continuance of a timely trial to a date outside the statutory 6-month period, as calculated on the date the motion to discharge was filed, (2) discharge is denied, and (3) that denial is affirmed on appeal.

Wright, J.

[287 Neb. 159] NATURE OF CASE

In April 2012, Randy L. Mortensen filed his second motion to discharge based upon his statutory right to a speedy trial. The district court overruled the motion and found that the State had 28 days remaining to bring Mortensen to trial. Mortensen appealed, and the Nebraska Court of Appeals affirmed via a memorandum opinion. See State v. Mortensen, No. A-12-454, 2013 WL 2106665 (Neb.App. Apr. 23, 2013) (selected for posting to court Web site).

The State petitioned for further review, arguing that additional days should be excluded from the speedy trial calculation because Mortensen's motion was frivolous and prejudiced the State. We granted the State's petition for further review and, upon consideration, hold that Mortensen has waived his statutory right to a speedy trial.

SCOPE OF REVIEW

As a general rule, a trial court's determination as to whether charges should be dismissed on speedy trial grounds is a factual question which will be affirmed on appeal unless clearly erroneous. State v. Brooks, 285 Neb. 640, 828 N.W.2d 496 (2013).

The meaning and interpretation of a statute are questions of law. We independently review questions of law decided by a lower court. Pinnacle Enters. v. City of Papillion, 286 Neb. 322, 836 N.W.2d 588 (2013).

[287 Neb. 160] FACTS

On October 27, 2009, Mortensen was charged by information with assault while being incarcerated and of being a habitual criminal. The current appeal involves his second attempt to obtain ...


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