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State v. Gill

Supreme Court of Nebraska

September 22, 2017

State of Nebraska, appellee,
v.
Joseph A. Gill, appellant.

         1. 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 clearly erroneous.

         2. Statutes: Appeal and Error. Statutory interpretation presents a question of law, which an appellate court reviews independently of the lower court's determination.

         3. 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.

         4. 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.

         5. __: __: __. 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.

         6. 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 order.

         7. 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).

         [297 Neb. 853] Appeal from the District Court for Saunders County: Mary C. Gilbride, Judge. Affirmed.

          Mark A. Steele, of Steele Law Office, for appellant.

          Douglas J. Peterson, Attorney General, and Siobhan E. Duffy for appellee.

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

          Wright, J.

         NATURE OF CASE

         This 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.

         BACKGROUND

         On 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.

         Count VII alleged incest with T.H. on or about September 21, 1996, to June 10, 2002.

         Count 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.

         On 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).

         Section 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.[1] 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 date.[2]

         And it 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.[3]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.[4] Before the effective date of the 2009 amendment, incest was governed by the general 3-year statute of limitations.[5]

         The 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.

         Gill 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.

         On June 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 date.

         On July 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.

         On 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 information.

         At the 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.

         On November 4, 2016, Gill again filed a motion to quash, [6]on 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[7] and constitutional rights to a speedy trial.

         The 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.

         Relying on our interpretation of § 29-1207(4)(b) in State v. Hettle[8] and State v. Mortensen, [9] the 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 period."

         Alternatively, 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.

         ASSIGNMENTS OF ERROR

         Gill 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.

         STANDARD OF REVIEW

         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 clearly erroneous.[10]

         Statutory interpretation presents a question of law, which an appellate court reviews independently of the ...


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