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State v. Beitel

Supreme Court of Nebraska

June 2, 2017

State of Nebraska, appellee,
v.
Roger Beitel, appellant.

          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. Statutory interpretation presents a question of law, for which an appellate court has an obligation to reach an independent conclusion irrespective of the determination made by the court below.

         3. ___: ___. Statutory language is to be given its plain and ordinary meaning, and an appellate court will not resort to interpretation to ascertain the meaning of statutory words which are plain, direct, and unambiguous.

         4. Statutes. It is not within the province of a court to read a meaning into a statute that is not warranted by the language; neither is it within the province of a court to read anything plain, direct, or unambiguous out of a statute.

         5. Statutes: Legislature: Intent. In reading a statute, a court must determine and give effect to the purpose and intent of the Legislature as ascertained from the entire language of the statute considered in its plain, ordinary, and popular sense.

         6. Speedy Trial: Joinder: Statutes: Legislature: Intent. The plain language of Neb. Rev. Stat. § 29-1207(4)(e) (Reissue 2016) and its legislative history both suggest that the Nebraska Legislature intended the statutory right to speedy trial to be a personal right which is not lost merely because a defendant is joined for trial with codefendants whose time for trial has not run.

         7. Speedy Trial: Statutes: Time. Nebraska's speedy trial statute, Neb. Rev. Stat. § 29-1207(1) (Reissue 2016), provides that every person [296 Neb. 782] indicted or informed against for any offense shall be brought to trial within 6 months and that such time shall be computed as provided in § 29-1207.

         8. ___: ___: ___. To compute the 6-month speedy trial period, 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) (Reissue 2016).

         9. Speedy Trial. The primary burden of bringing an accused person to trial within the time provided by law is upon the State.

         10. Speedy Trial: Dismissal and Nonsuit. If the State does not bring a defendant to trial within the permitted time, as extended by any periods excluded under Neb. Rev. Stat. § 29-1207(4) (Reissue 2016), the defendant is entitled to absolute discharge from the offense charged.

         11. Speedy Trial: Proof. The burden of proof is on the State to show, by a preponderance of the evidence, that one or more of the excluded periods under Neb. Rev. Stat. § 29-1207(4) (Reissue 2016) are applicable.

         12. Speedy Trial: Joinder. The plain language of Neb. Rev. Stat. § 29-1207(4)(e) (Reissue 2016) contains three elements that must be satisfied for the codefendant exclusion to be applicable: (1) The defendant's case must be joined for trial with that of a codefendant as to whom the speedy trial time has not run, (2) the period of delay must be reasonable, and (3) there must be good cause for not granting a severance.

         13. Speedy Trial: Joinder: Pretrial Procedure: Waiver. Ajoined codefend-ant's failure to request a severance before his or her speedy trial time expires has the practical effect of waiving the possibility of a severance, but does not result in a waiver of the right to speedy trial.

         14. Speedy Trial: Joinder: Motions to Dismiss: Time. In cases where a joint trial is set for a date certain when the defendant files his or her motion for absolute discharge, the period of delay for purposes of Neb. Rev. Stat. § 29-1207(4)(e) (Reissue 2016) is determined by first calculating the defendant's speedy trial time absent the codefendant exclusion and then determining the number of days beyond that date that the joint trial is set to begin.

         15. Speedy Trial: Joinder: Words and Phrases. For purposes of Neb. Rev. Stat. § 29-1207(4)(e) (Reissue 2016), "good cause" means a substantial reason; one that affords a legal excuse. Good cause is something that must be substantial, but is also a factual question dealt with on a case-by-case basis.

         Appeal from the District Court for Scotts Bluff County: Leo Dobrovolny, Judge. Affirmed.

         [296 Neb. 783] Robert O. Hippe and Kyle J. Long, of Robert Pahlke Law Group, P.C., L.L.O., for appellant.

          Douglas J. Peterson, Attorney General, and Stacy M. Foust for appellee.

          Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch, and Funke, JJ.

          Stacy, J.

         Roger Beitel appeals from an order denying his motion for absolute discharge. He contends the district court misapplied the codefendant exclusion under Neb. Rev. Stat. § 29-1207(4)(e) (Reissue 2016) when computing time under Nebraska's speedy trial statutes.[1] Finding no clear error, we affirm.

         I. FACTS

         Roger and his father Allen Beitel were both charged in the district court for Scotts Bluff County with criminal conspiracy to commit felony theft in an aggregate amount of more than $1, 500. The information against Allen was filed July 1, 2015, and the information against Roger was filed July 15. At Allen's arraignment, his case was set to be tried during the jury term beginning October 5. At Roger's arraignment, his case was set to be tried during the jury term beginning November 2.

         On September 21, 2015, Allen filed a motion to continue trial in his case because he was waiting on discovery materials from the State. The following day, the State moved to join Roger's and Allen's cases for trial.

         On October 5, 2015, a hearing was held on Allen's motion to continue and the State's motion to join the cases for trial. Both Roger and Allen were present at the hearing and represented by counsel. During the hearing, Allen expressly waived his right to speedy trial, and trial in Allen's case was continued to a date to be determined. Roger's speedy trial time was not [296 Neb. 784] addressed during the October 5 hearing. At the close of the hearing, the State's motion for joinder was taken under advisement. In an order entered November 18, the court granted the motion to join Roger's and Allen's cases for trial.

         A joint pretrial conference was held January 5, 2016. At the outset of the pretrial conference, the court discussed trial scheduling. The attorneys advised the court they expected trial would last 5 days. The court indicated a preference for trying the case during the first week of February because there were "five [full] days available then" and the court was concerned the January jury pool was not large enough to accommodate the peremptory strikes of two defendants. The joint trial was set for the February 2016 jury term, with jury selection to begin on February 1.

         At the conclusion of the pretrial conference, Roger's counsel revisited the trial scheduling issue, stating:

Your Honor, just to put it on the record, and I know we discussed this beforehand if this is better handled in a motion, but ... I believe that we have an objection to scheduling of the trial in February, as it exceeds the speedy trial date for [Roger].

         Roger's counsel noted that the prosecutor had provided the court "with a memorandum specifying that [Roger's] speedy trial date runs on January 24th if he is not considered to be bound to [Allen's] speedy trial date." Counsel indicated he was raising the issue to give the court an opportunity "to consider a separation" of the cases before Roger filed a motion for discharge. The court declined to take up either severance or discharge during the pretrial conference, stating:

Well, if you want me to hear a motion to [sever], you need to file it and if you want me to hear a motion for discharge, you need to file that, too. . . .
... If you want motion hearings before the day of trial, get them on file and just schedule them . . . and we'll get them heard.
[296 Neb. 785]
No motion to sever was filed. But on January 27, 2016. Roger filed a motion for absolute discharge alleging his speedy trial time had run on January 24. An evidentiary hearing ...

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