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.
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.
___: ___. 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.
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.
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.
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.
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.
___: ___: ___. 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
Speedy Trial. The primary burden of bringing an
accused person to trial within the time provided by law is
upon the State.
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.
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.
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
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.
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.
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.
from the District Court for Scotts Bluff County: Leo
Dobrovolny, Judge. Affirmed.
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
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch,
and Funke, JJ.
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. Finding no clear error, we
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.
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.
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.
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.
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].
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
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
[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 ...