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State v. Lovvorn

Supreme Court of Nebraska

August 2, 2019

State of Nebraska, appellee,
v.
Daniel J. Lovvorn, 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.___. 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.

         5.___.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).

         6.___ . For speedy trial purposes, the calculation of excludable time for a continuance begins the day after the continuance is granted and includes the day on which the continuance ends.

         7. 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.

         [303 Neb. 845] 8. Constitutional Law: Speedy Trial. The constitutional right to a speedy trial is guaranteed by U.S. Const, amend. VI and Neb. Const, art. I, § 11.

          Appeal from the District Court for Sarpy County: Nathan B. Cox, Judge.

          Carolyn Wilson, Assistant Sarpy County Public Defender, and Mitchell Sells, Senior Certified Law Student, for appellant.

          Douglas J. Peterson, Attorney General, and Stacy M. Foust for appellee.

          Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

          PAPIK, J.

         Daniel J. Lovvorn filed a motion for discharge on statutory and constitutional speedy trial grounds. The district court overruled the motion, and Lovvorn appeals that ruling. For reasons we will explain, we affirm.

         BACKGROUND

         On January 19, 2018, the State filed an information against Lovvorn in the district court for Sarpy County. The State charged Lovvorn with theft by receiving stolen property, $5, 000 or more; possession of a deadly weapon by a prohibited person; possession of a firearm by a prohibited person; driving under revocation/court order; carrying a concealed weapon; reckless driving; obstructing a peace officer; possession of marijuana, 1 ounce or less, or synthetically produced cannabinoids; and ...


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