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State v. Hettle

Supreme Court of Nebraska

June 6, 2014

STATE OF NEBRASKA, APPELLEE,
v.
LOGAN HETTLE, APPELLANT

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Appeal from the District Court for Seward County: JEFFRE CHEUVRONT, District Judge, Retired.

James R. Mowbray and Sarah P. Newell, of Nebraska Commission on Public Advocacy, for appellant.

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

HEAVICAN, C.J., WRIGHT, CONNOLLY, STEPHAN, McCORMACK, MILLER-LERMAN, and CASSEL, JJ.

OPINION

Page 587

[288 Neb. 290] McCormack, J.

NATURE OF CASE

The defendant appeals from the denial of his motion for absolute discharge, alleging that the delay in bringing him to trial violated his statutory and constitutional rights to a speedy trial and his right to due process. At issue is whether the defendant's indefinite motion for continuance was automatically extinguished by the State's amended information, thereby relieving the defendant of his duty under Neb. Rev. Stat. § 29-1207(4)(b) (Cum. Supp. 2012) to give notice of request for trial in order to end the continuance and its accompanying statutory waiver of the right to a speedy trial. We affirm the judgment of the district court.

BACKGROUND

On November 12, 2010, a complaint was filed in county court alleging seven counts against Logan Hettle. Count 1 was sexual penetration of T.S. without consent on or about August 1 through 31, 2009. Count 2 was knowingly restraining or abducting T.S on or about August 1 through 31, 2009. Count 3 was sexual penetration of L.F. without consent on or about July 4 through August 31, 2010. Count 4 was sexual contact of L.F. without consent on or about July 4 through August 31, 2010. Count 5 was sexual contact of T.S. without consent on or about August 1 through 31, 2009. Count 6 was attempted sexual contact of A.S. without consent on or about October 5, 2009. Count 7 was sexual contact of C.N. without consent on or about June 1 through August 31, 2008.

[288 Neb. 291] On January 19, 2011, counts 1 through 3 were bound over to district court and counts 4 through 7 were dismissed. On February 2, the State filed an information in district court charging four counts against Hettle. Count 1 charged sexual penetration of T.S. without consent on or about August 1 through 31, 2009, a Class II felony. Count 2 charged restraining or abducting T.S. under terrorizing circumstances or risk of serious bodily injury on or about August 1 through 31, 2009, a Class IIIA felony. Count 3 charged sexual penetration of L.F. without consent on or about July 4 through August 31, 2010, a Class II felony. Count 4

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charged sexual contact of L.F. without consent on or about July 4 through August 31, 2010, a Class I misdemeanor.

Hettle was arraigned. On February 14, 2011, defense counsel filed a motion to transfer to juvenile court, which was denied on April 12. A defense motion for discovery made on June 1 was ruled on June 27. On July 19, the court appointed the Commission on Public Advocacy (the Commission) to represent Hettle. On July 21, the Commission asked for a continuance for research and discovery, with no stated end date. On August 4, the Commission moved for release of a video, which was ordered released on August 5.

On December 12, 2011, the State filed an amended information alleging five counts. Count 1 was identical to count 1 of the original information. Count 2 charged the same crime of sexual penetration of L.F. without consent, but extended the date range to May 1 through September 31, 2009. Count 3 charged the same crime of sexual penetration of L.F. without consent, but narrowed the date to on or about July 4, 2010. Count 4 increased the charge to sexual penetration of L.F. without consent, a Class II felony, and narrowed the date to on or about August 6, 2010. Count 5 charged attempted sexual assault of A.S. on or about October 5, 2009, a Class II misdemeanor.

On December 30, 2011, Hettle moved to sever counts 1 and 5 from counts 2 through 4.

For reasons that are not clear from the record, on March 28, 2012, a probable cause hearing was held in county court wherein the court found probable cause as to counts 1 through [288 Neb. 292] 4, but dismissed count 5 of the amended information. Hettle's objection to the county court's jurisdiction was overruled, and the case was bound over again to district court.

On October 22, 2012, the district court denied Hettle's December 30, 2011, motion to sever. That same date, the court scheduled trial for April 2 through 5, 2013. Hettle lodged no objection to the proposed trial date. Instead, when the district court asked the Commission, " Unless you have time earlier, then we could bump somebody else," the Commission replied, " It's up to the Court. I don't know what you want to do. That's fine, Judge."

On April 1, 2013, Hettle filed a motion for absolute discharge under § 29-1207(3); article I, § 11, of the Constitution of the State of Nebraska; and the 5th, 6th, and 14th Amendments to the U.S. Constitution. Hettle has been free on bail during the entire pendency of the charges against him. The court denied the motion for discharge, and Hettle appeals.

ASSIGNMENT OF ERROR

Hettle assigns that the district court erred in overruling his motion ...


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