Judgments: Speedy Trial: Appeal and Error.
Generally, 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
Statutes: Appeal and Error. Statutory
interpretation presents a question of law, which an appellate
court reviews independently of the lower court's
Pleadings: Limitations of Actions: Final Orders:
Appeal and Error. A ruling on a motion to quash on
the ground that the charges of the information are allegedly
outside the statute of limitations is not a final, appealable
order as defined by Neb. Rev. Stat. § 25-1902 (Reissue
2016), no matter how the motion was denominated.
Jurisdiction: Final Orders: Appeal and
Error. An appeal from a final order may raise every
issue presented by the order that is the subject of the
appeal, but appellate jurisdiction does not extend to issues
not presented by the final order.
__: __. An appellate court cannot address on appeal issues
that do not bear on the correctness of the final order upon
which its appellate jurisdiction is based.
Pleadings: Final Orders: Appeal and Error. A
litigant cannot gain interlocutory review of an issue that
does not affect a substantial right by surreptitiously
joining it to a motion that otherwise results in a final
Speedy Trial: Motions for Continuance:
Waiver. The definite or indefinite nature of a
requested continuance is irrelevant to the applicability of
the waiver set forth in the amended language of Neb. Rev.
Stat. § 29-1207(4)(b) (Reissue 2016).
Neb. 853] Appeal from the District Court for Saunders County:
Mary C. Gilbride, Judge. Affirmed.
A. Steele, of Steele Law Office, for appellant.
Douglas J. Peterson, Attorney General, and Siobhan E. Duffy
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch,
and Funke, JJ.
case presents an appeal from the denial of the
defendant's motion for absolute discharge. The defendant
and the State dispute whether defendant's motion to
continue the trial date outside the statutory 6-month period
constituted a permanent waiver, under Neb. Rev. Stat. §
29-1207(4)(b) (Reissue 2016), of the statutory speedy trial
right. Alternatively, they dispute what periods of delay were
attributable to the State or to the defendant.
November 9, 2015, Joseph A. Gill was charged with seven
counts of first degree sexual assault, see Neb. Rev. Stat.
§ 28-319(1)(a) (Reissue 2016), and two counts of incest,
see Neb. Rev. Stat. § 28-703 (Reissue 2016). Counts I
through III alleged sexual assault on or about September 21,
1996, to June 10, 2002, on T.H., born in 1989. Count IV
alleged sexual assault on T.H. on or about September 21,
1997, to September 20, 1998. Count V alleged sexual assault
on T.H. on or about September 21, 1998, to September 2, 2002,
and count VI alleged sexual assault on T.H. on or about June
3 to 10, 2002.
VII alleged incest with T.H. on or about September 21, 1996,
to June 10, 2002.
VIII alleged sexual assault on K.A., born in 1998, on or
about January 1, 2005, to December 31, 2006. Lastly, [297
Neb. 854] count IX alleged incest with K.S., born in 1998, on
or about January 1, 2005, to December 31, 2006.
November 16, 2015, Gill moved to quash the information on the
ground that the charges were time barred under Neb. Rev.
Stat. § 29-110 (Reissue 2016).
29-110(8) currently provides that there is no statute of
limitations for charges of incest and first degree sexual
assault of a child. Prior to an amendment in 2005, however,
the statute of limitations for first degree sexual assault of
a child was 7 years from the date of the offense or within 7
years after the victim's 16th birthday, whichever was
later. The 2005 amendment explicitly applies to
offenses committed before September 4, 2005, for which the
statute of limitations had not expired as of September 4,
2005, as well as to offenses committed on or after that
was not until 2009 that the Legislature added the crime of
incest to its list of crimes in § 29-110(8) that are
without any time limitations for prosecution or
punishment.This 2009 amendment applies to offenses
committed before May 21, 2009, for which the statute of
limitations had not expired as of that date, as well as to
offenses committed on or after May 21, 2009. Before the
effective date of the 2009 amendment, incest was governed by
the general 3-year statute of limitations.
court ruled on the motion to quash on February 4, 2016. The
court concluded that the charges of sexual assault in counts
I through V were timely brought because the statute of
limitations on these charges had not yet expired as of
September 4, 2005. Likewise, the court found that count VIII
[297 Neb. 855] was timely brought. The court sustained
Gill's motion to quash as to count VII. The court also
partially sustained Gill's motion to quash as to count
IX, to the extent the crime was alleged to have occurred
before May 21, 2006.
was rearraigned on the first eight charges on March 21, 2016,
with the incest charge that was previously count IX described
as count VIII. Apparently, no amended information had been
filed. Trial was set for July 13.
20, 2016, Gill orally moved to continue trial for the reason
that he had not completed taking depositions. The court
granted the motion. As a result of the continuance, trial was
set for September 14. Gill did not object to the new trial
6, 2016, the State obtained a continuance because the victim
for counts VII and VIII was pregnant, with a due date of
September 13. The State conceded in its motion that Gill
would not consent to the continuance. At the hearing on the
motion, defense counsel stated that he understood the
situation and "would just ask the Court ... if
[it's] going to grant the State's motion to continue,
that it be a short one." The court granted the
continuance and set a new trial date for October 12.
October 11, 2016, the State applied for and was given leave
to amend the information, over Gill's objection. The
amended information omitted the ninth charge, that the court
had previously ordered quashed and which was omitted in the
description of the charges when Gill was rearraigned. And the
amended information corrected the date of what was newly
designated as "count VIII, " in order to conform to
the court's prior order finding that the charge was
timely brought only to the extent it alleged acts occurring
before May 21, 2006. The principal purpose of the amended
information, however, was to add facts supporting habitual
criminal enhancement of the potential sentences. Except for
changes made to conform to the court's prior order
partially granting Gill's motion to quash and the
addition of the habitual criminal [297 Neb. 856] allegations,
the amended information was the same as the original
hearing on the State's motion to amend the information,
defense counsel stated that he would not be ready to proceed
the next day for the scheduled trial on the amended
information; he needed a reasonable opportunity to look it
over and discuss the enhanced penalties with Gill. The court
granted defense counsel what the court characterized as a
request for additional time and it set a new trial date for
November 16, 2016. Defense counsel did not object at the
hearing to the new trial date.
November 4, 2016, Gill again filed a motion to quash,
the ground that counts I through VI stated in the information
were time-barred. At the hearing, defense counsel explained
that he was renewing his motion on the statute of limitations
in order to preserve the issue for trial. Also on November 4,
Gill filed a separate motion for absolute discharge based on
the alleged violations of both his statutory and
constitutional rights to a speedy trial.
court issued an order on November 14, 2016. The court stated
in its order that the matters to be addressed were Gill's
two motions, but it ultimately explicitly ruled only on the
motion for absolute discharge. There appears in the record no
ruling on the November 4 motion to quash, and nothing in the
record demonstrates that Gill insisted on a ruling.
on our interpretation of § 29-1207(4)(b) in State v.
Hettle and State v. Mortensen,
district court found that Gill had made a permanent and
unequivocal waiver of his statutory right to a speedy trial
by requesting a continuance that [297 Neb. 857] extended the
trial date beyond the statutory 6-month period. Section
29-1207(4)(b) states in relevant part that "[a]
defendant is deemed to have waived his or her right to speedy
trial when the period of delay resulting from a continuance
granted at the request of the defendant or his or her counsel
extends the trial date beyond the statutory six-month
the court found that without such a permanent waiver, the
total period of delay attributable to the State was still
only 168 days. The court did not explicitly address
Gill's constitutional speedy trial right, but generally
denied the motion for absolute discharge. Gill filed this
appeal within 30 days of the November 14, 2016, order.
assigns that the district court erred in (1) denying his
motion for absolute discharge insofar as it alleged that he
was not brought to trial within the statutory time period
under § 29-1207, (2) denying his motion for absolute
discharge insofar as it alleged that he was denied his
constitutional right to a speedy trial, and (3) failing to
consider Gill's motion to quash due to the failure of the
State to file the information within the statutory time
period from the date of the alleged offenses.
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
interpretation presents a question of law, which an appellate
court reviews independently of the ...