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State v. Perez-Cruz

Court of Appeals of Nebraska

March 8, 2016

STATE OF NEBRASKA, APPELLEE,
v.
RAYMUNDO M. PEREZ-CRUZ, APPELLANT

Appeal from the District Court for Lancaster County: ANDREW R. JACOBSEN, Judge.

Jim K. McGough, of McGough Law, P.C., L.L.O., for appellant.

Douglas J. Peterson, Attorney General, and George R. Love for appellee.

MOORE, Chief Judge, and IRWIN and INBODY, Judges.

OPINION

Page 906

[23 Neb.App. 744] Inbody, Judge.

INTRODUCTION

Raymundo M. Perez-Cruz appeals his conviction and sentence in Lancaster County District Court for first degree sexual assault of a child. For the reasons that follow, we find that the district court abused its discretion by overruling Perez-Cruz' motion to withdraw the waiver of his right to a jury trial. Perez-Cruz' conviction and sentence are reversed, and the matter is remanded to the district court for a new trial.

STATEMENT OF FACTS

On October 18, 2013, the State filed an information charging Perez-Cruz with one count of first degree sexual assault of a child, a Class IB felony, in violation of Neb. Rev. Stat. § 28-319.01(2) (Cum. Supp.

Page 907

2014) based upon allegations that Perez-Cruz, who at that time was older than 25 years old, subjected a victim, born in 1999, to sexual penetration.

On January 30, 2014, Perez-Cruz came before the court for purposes of entering a waiver of his right to a speedy trial and right to a jury trial. Counsel for Perez-Cruz indicated that a plea agreement might be reached with the State and requested 60 days to do so. The court advised Perez-Cruz of his right to a speedy trial and right to a jury trial. Perez-Cruz indicated, in open court, that he understood those rights and wished to waive them both. The district court found that Perez-Cruz had freely, voluntarily, knowingly, and intelligently waived his right to a speedy trial and right to a jury trial. The district court set the matter for entry of plea for April 2014.

On May 5, 2014, Perez-Cruz filed a motion to withdraw his waiver of a jury trial. The motion alleged that the waiver was premised upon " inducement, expectancy on a partial plea agreement and would not have been made but for the fact that [23 Neb.App. 745] the case was put on a Plea Calendar." The motion alleged that on April 26, he was informed that there would be no plea, and that thus, he wished to reinstate his right to a jury trial. On May 19, Perez-Cruz' motion came before the court. In response to the motion, the State indicated that it had missed an opportunity to try the case during the February, April, and June term because it was " too late" and that the State was not going to be in a position to try the case in June. The trial court took the matter under advisement ...


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