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State v. Vela-Montes

Supreme Court of Nebraska

March 21, 2014

STATE OF NEBRASKA, APPELLEE,
v.
VICTOR VELA-MONTES, APPELLANT

Appeal fro the District Court for Douglas County: J. MICHAEL COFFEY, Judge. Motion for rehearing sustained.

Daniel R. Stockmann, of Dunn & Stockmann, for appellant.

Jon Bruning, Attorney General, and Kimberly A. Klein for appellee.

HEAVICAN, C.J., WRIGHT, CONNOLLY, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ. CASSEL, J., not participating.

OPINION

Page 287

Wright, J.

NATURE OF CASE

In June 2012, Victor Vela-Montes filed his second motion to discharge based upon the statutory right to a speedy trial. After the district court overruled the motion, Vela-Montes appealed. [287 Neb. 680] However, while the appeal was pending, he moved to withdraw and dismiss the appeal. We dismissed Vela-Montes' appeal upon his motion without determining how much time remained on the speedy trial clock.

The State sought rehearing due to our failure to address how much time remained on Vela-Montes' speedy trial clock. We sustained the State's motion for rehearing. We now conclude that Vela-Montes waived his statutory right to a speedy trial and that there was no need to calculate the time remaining to bring him to trial. We affirm the dismissal of Vela-Montes' appeal.

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. Mortensen, 158, 287 Neb. 158, 841 N.W.2d 393 (2014).

FACTS

On February 26, 2009, Vela-Montes was charged with two counts of first degree sexual assault. Trial was set for February 1, 2010, but on January 19, Vela-Montes filed a motion for discharge based upon his statutory right to a speedy trial. The district court overruled the motion.

As a result of the district court's decision to overrule Vela-Montes' first motion to discharge, two appeals were filed in the Court of Appeals. The first appeal, State v. Vela-Montes, No. A-10-106, was summarily remanded on July 7, 2010, to the district court with direction that the court make " specific findings of each period of delay excludable under Neb. Rev. Stat. § 29-1207(4)(a) to (f) [(Cum. Supp. 2012)]." After the district court made its findings, Vela-Montes appealed again. In State v. Vela-Montes, 19 Neb.App. 378, 807 N.W.2d 544 (2011), the Court of Appeals affirmed the district court's denial of absolute discharge and held that 45 days remained on the speedy trial clock. We granted a petition for further review, and we affirmed without opinion. See State v. Vela-Montes, 283 Neb. 530, 810 N.W.2d 749 ...


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