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State v. Fioramonti

Court of Appeals of Nebraska

June 3, 2014

STATE OF NEBRASKA, APPELLEE,
v.
JOSEPH J. FIORAMONTI, APPELLANT

Page 96

[Copyrighted Material Omitted]

Page 97

Appeal from the District Court for Cheyenne County: DEREK C. WEIMER, Judge.

Stacy C. Nossaman-Petitt, of Nossaman Petitt Law Firm, P.C., for appellant.

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

INBODY, Chief Judge, and PIRTLE and RIEDMANN, Judges.

OPINION

Page 98

[22 Neb.App. 54] RIEDMANN, Judge.

INTRODUCTION

Joseph J. Fioramonti appeals from the decision of the district court for Cheyenne County denying his motion to dismiss on speedy trial grounds. We find that the district court did not err in determining that his motion was premature. Accordingly, we affirm.

BACKGROUND

On September 10, 2012, Fioramonti was charged by information with possession of marijuana with intent to deliver, possession of marijuana weighing more than 1 pound, and possession of a controlled substance without tax stamps. On September 26, Fioramonti filed a motion for statutory discovery and a motion for return of personal property. A hearing on these motions was originally scheduled for October 12, but the district court granted a continuance to October 16 on the State's motion. Although the hearing is not contained in the record, the district court's journal entry indicates that Fioramonti had no objection to the State's request for continuance. On October 16, the district court ruled on Fioramonti's motion for statutory discovery and motion for return of personal property.

The matter was set for trial to begin on January 28, 2013. On December 21, 2012, the State filed a motion to continue the trial from January 28 to January 31, 2013, due to the unavailability of one of the State's witnesses. The State did not identify the unavailable witness or offer any evidence regarding the materiality of such witness. The following exchange took place during the hearing:

[22 Neb.App. 55] THE COURT: Okay, sounds good. Then let's talk about the motion to continue. Maybe the easiest way to start on that is to ask you if you have any objection to that?
[Defense counsel]: Your honor, we don't have an objection as long as the time runs against the State. We have no objection. I don't think this case has been pending that long so it shouldn't be an issue.

Page 99

THE COURT: All right, I don't think ...

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