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State v. Carrera

Court of Appeals of Nebraska

March 27, 2018

STATE OF NEBRASKA, APPELLEE,
v.
KIM M. CARRERA, 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. Speedy Trial. The statutory right to a speedy trial is set forth in Neb. Rev. Stat. §§ 29-1207 and 29-1208 (Reissue 2016).

         4.___ . 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) (Reissue 2016).

         5. ___. 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.

         6. 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 months.

         7. ___:___. 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.

         8. 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.

         10. 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 otherwise.

         11. 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.

         12. 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.

         13. 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 preliminary hearing.

         14. 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.

         15. 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 be relevant.

          Appeal from the District Court for Sarpy County: William B. Zastera, Judge. Affirmed.

          Joseph Kuehl, of Lefler, Kuehl & Burns, for appellant.

          Douglas J. Peterson, Attorney General, and Kimberly A. Klein for appellee.

          Moore, Chief Judge, and Inbody and Bishop, Judges.

          BISHOP, JUDGE.

         I. INTRODUCTION

         Kim M. 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.

         II. BACKGROUND

         This 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).

         [25 Neb.App. 653] 1. Sarpy County District Court Case No. CR15-586

         The 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.

         On 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.

         Also on 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).

         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.

         On 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.

          [25 Neb.App. 654] 2. Sarpy County District Court Case No. CR15-631

         On 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.)

         On September 18, 2015, Carrera filed separate motions to take depositions and for discovery. These motions were not resolved prior to the dismissal below.

         On 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 prejudice.

         3. Sarpy County District Court Case No. CR15-851-Case on Appeal

         After 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 court.

          [25 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.

         On 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 ...


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