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.
Statutes: Appeal and Error. Statutory
interpretation presents a question of law, which an appellate
court reviews independently of the lower court's
Speedy Trial. The statutory right to a
speedy trial is set forth in Neb. Rev. Stat. §§
29-1207 and 29-1208 (Reissue 2016).
. To calculate the deadline for trial under the speedy trial
statutes, 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)
___. Under Neb. Rev. Stat. § 29-1208 (Reissue 2016), if
a defendant is not brought to trial before the running of the
time for trial as provided for in Neb. Rev. Stat. §
29-1207 (Reissue 2016), as extended by excluded periods, he
or she shall be entitled to his or her absolute discharge
from the offense charged and for any other offense required
by law to be joined with that offense.
Speedy Trial: Proof. The burden of proof is
upon the State to show that one or more of the excluded time
periods under Neb. Rev. Stat. § 29-1207(4) (Reissue
2016) are applicable when the defendant is not tried within 6
___:___. To overcome a defendant's motion for discharge
on speedy trial grounds, the State must prove the existence
of an excludable period by a preponderance of the evidence.
Speedy Trial: Complaints: Indictments and
Informations. For cases commenced with a complaint
in county court but thereafter bound over [25 Neb.App. 651]
to district court, the 6-month statutory speedy trial period
does not commence until the filing of the information in
district court. 9. Speedy Trial: Pretrial
Procedure. The plain terms of Neb. Rev. Stat. §
29-1207(4)(a) (Reissue 2016) exclude all time between the
time of the filing of a defendant's pretrial motions and
their final disposition, regardless of the promptness or
reasonableness of the delay. The excludable period commences
on the day immediately after the filing of a defendant's
pretrial motion. Final disposition under § 29-1207(4)(a)
occurs on the date the motion is granted or denied.
Speedy Trial: Pretrial Procedure:
Presumptions. Pursuant to Neb. Rev. Stat. §
29-1207(4)(a) (Reissue 2016), it is presumed that a delay in
hearing defense pretrial motions is attributable to the
defendant unless the record affirmatively indicates
Speedy Trial: Indictments and Informations.
The time between dismissal of an information and refiling is
not includable, or is tolled, for purposes of the statutory
6-month period. However, any nonexcludable time that passed
under the original information is tacked onto any
nonexcludable time under the refiled information, if the
refiled information alleges the same offense charged in the
previously dismissed information.
Speedy Trial: Preliminary Hearings: Waiver:
Complaints: Indictments and Informations. If an
information is filed initially in district court, referred to
as a "direct information, " such filing is treated
in the nature of a complaint until a preliminary hearing is
held or waived.
Speedy Trial: Preliminary Hearings: Probable Cause:
Waiver: Indictments and Informations. In the case of
a direct information, the day the information is filed for
speedy trial act purposes is the day the district court finds
probable cause or the day the defendant waives the
Speedy Trial: Waiver: Appeal and Error. A
defendant's motion to discharge based on statutory speedy
trial grounds will be deemed to be a waiver of that right
under Neb. Rev. Stat. § 29-1207(4)(b) (Reissue 2016)
where (1) the filing of such motion results in the
continuance of a timely trial to a date outside the statutory
6-month period, as calculated on the date the motion to
discharge was filed, (2) discharge is denied, and (3) that
denial is affirmed on appeal.
Constitutional Law: Judgments: Speedy Trial: Appeal
and Error. Although there is no right to
interlocutory appeal solely concerning a constitutional right
to speedy trial, the overruling of a motion alleging the
denial of a speedy trial based upon constitutional grounds
pendent [25 Neb.App. 652] to a nonfrivolous statutory claim
may be reviewed on appeal from that order. 16.
Constitutional Law: Speedy Trial.
Determining whether a defendant's constitutional right to
a speedy trial has been violated requires a balancing test in
which the courts must approach each case on an ad hoc basis.
This balancing test involves four factors: (1) length of
delay, (2) the reason for the delay, (3) the defendant's
assertion of the right, and (4) prejudice to the defendant.
None of these four factors standing alone is a necessary or
sufficient condition to the finding of a deprivation of the
right to speedy trial. Rather, the factors are related and
must be considered together with other circumstances as may
from the District Court for Sarpy County: William B. Zastera,
Kuehl, of Lefler, Kuehl & Burns, for appellant.
Douglas J. Peterson, Attorney General, and Kimberly A. Klein
Chief Judge, and Inbody and Bishop, Judges.
Carrera appeals the Sarpy County District Court's order
overruling her motion for absolute discharge, which alleged
violations of her statutory and constitutional rights to a
speedy trial. We affirm.
case is somewhat complicated because there are three criminal
charges involved. Two of the charges were initially filed as
separate cases (Sarpy County District Court cases Nos.
CR15-586 and CR15-631), but were dismissed. The 6-month
speedy trial clock would have started to run on those two
charges when filed, would have stopped when dismissed, and
then would have restarted when refiled in the current case,
which also has one new charge (Sarpy County District Court
case No. CR15-851).
Neb.App. 653] 1. Sarpy County District Court Case No.
State initially filed a criminal complaint in the county
court for Sarpy County on August 31, 2015, charging Carrera
with one count of second degree sexual assault of a protected
individual, a Class IV felony, under Neb. Rev. Stat. §
28-322.04(2) and (4) (Reissue 2008). The complaint alleged
that the victim was C.W. and that the incident occurred on
August 27. (We note that Carrera's alleged offense
occurred prior to August 30, 2015, the effective date of 2015
Neb. Laws, L.B. 605, which changed the classification of
certain crimes and made certain amendments to Nebraska's
sentencing laws.) On September 4, Carrera filed a waiver of
preliminary hearing, and the case was bound over to district
court on September 8.
September 16, 2015, the State filed an information in the
Sarpy County District Court charging Carrera with one count
of second degree sexual assault of a protected individual, a
Class IV felony, under § 28-322.04(2) and (4). The
information alleged that the victim was C.W. and that the
incident occurred on August 27.
September 16, 2015, Carrera filed separate motions to take
depositions and for discovery; the motion to take depositions
included various witnesses, one of which was the alleged
victim, C.W. Carrera's written motion for discovery was
denied after a hearing on September 21; however, oral motions
for discovery and to depose C.W. were granted (it is not
clear whether the written motion to take depositions-which
included individuals other than C.W.-was ever ruled on).
October 26, 2015, Carrera filed separate motions to compel
and to release property. These motions do not appear to have
been resolved prior to the dismissal below.
November 3, 2015, the State filed a motion to dismiss the
case without prejudice. The district court filed its order of
dismissal, without prejudice, on November 9.
Neb.App. 654] 2. Sarpy County District Court Case No.
September 16, 2015, the State filed a "Direct
Information" in the Sarpy County District Court charging
Carrera with one count of child abuse, a Class IIIA felony,
under Neb. Rev. Stat. § 28-707(1)(d) and (e) (Cum. Supp.
2014). The information alleged that the victim was C.W. and
that the incident occurred on August 27. (Like Sarpy County
District Court case No. CR15-586 summarized above, the date
of this offense preceded the August 30, 2015, effective date
of LB. 605.)
September 18, 2015, Carrera filed separate motions to take
depositions and for discovery. These motions were not
resolved prior to the dismissal below.
September 21, 2015, upon motion by the State, the case was
dismissed by the district court "due to it being a
direct information"; the dismissal was without
Sarpy County District Court Case No. CR15-851-Case on Appeal
initially filing a criminal complaint and an amended criminal
complaint in the county court for Sarpy County on October 27
and 28, 2015, the State filed a second amended criminal
complaint on November 3, charging Carrera with the following:
one count of tampering with physical evidence, a Class IV
felony, under Neb. Rev. Stat. § 28-922 (Reissue 2016)
(count I); one count of child abuse, a Class IIIA felony,
under § 28-707(1)(d) and (e) (count II) (this is the
same charge as was dismissed in Sarpy County District Court
case No. CR15-631 above); and one count of second degree
sexual abuse of a protected individual, a Class IV felony,
under § 28-322.04(2) and (4) (count III) (this is the
same charge as was dismissed in Sarpy County District Court
case No. CR15-586 above). The State alleged that the victim
was C.W. and that the incidents occurred between August 1 and
28 (all preceding the L.B. 605 effective date of August 30,
2015). On December 1, Carrera waived her right to a
preliminary hearing and the case was bound over to district
Neb.App. 655] On December 10, 2015, the State filed an
information in the Sarpy County District Court charging
Carrera with each count as described above. The information
alleged that C.W. was the victim in counts II and III and, as
amended on December 14, alleged that the incidents giving
rise to all three counts occurred between August 1 and 28.
December 10, 2015, Carrera filed a motion for depositions,
which was granted by the court on December 14. Also on
December 14, the court filed an order ...