State v. Bridgeford , 298 Neb. 156 ( 2017 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
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Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
STATE v. BRIDGEFORD
Cite as 298 Neb. 156
State of Nebraska, appellee, v.
Gerard Bridgeford, appellant.
State of Nebraska, appellee, v.
Judith Bridgeford, appellant.
___ N.W.2d ___
Filed November 3, 2017. Nos. S-16-1032, S-16-1035.
1. Statutes: Appeal and Error. Statutory interpretation presents a question
of law, which an appellate court resolves independently of the conclu-
sion reached by the trial court.
2. Speedy Trial: Waiver: Motions for Continuance. Although the amend-
ments to Neb. Rev. Stat. § 29-1207(4)(b) (Reissue 2016) were designed
to prevent abuse, it does not follow that the waiver set forth therein
applies only if the defendant’s continuance was in bad faith.
3. Speedy Trial: Waiver: Motions for Continuance: Time. To determine
if a defendant has permanently waived his or her statutory right to a
speedy trial, the inquiry is simply whether the defendant’s motion to
continue resulted in a trial date that exceeded the 6-month period, as
calculated with the excludable periods up to the date of the motion; the
reason for and nature of the motion to continue are of no consequence.
4. Speedy Trial: Time: Indictments and Informations. To calculate the
6-month clock, a court must exclude the day the information was filed,
count forward 6 months, back up 1 day, and then add any time excluded
under Neb. Rev. Stat. § 29-1207(4) (Reissue 2016).
5. Speedy Trial: Time: Pleadings. Excludable periods attributable to pre-
trial motions such as motions to suppress, motions to quash, demurrers,
pleas in abatement, and motions for change of venue begin on the date
of filing and end on the date of final disposition of the motions.
6. Speedy Trial: Time: Pretrial Procedure: Motions for Continuance.
Continuances of pretrial conferences are excludable from the speedy
trial clock from the original date of the pretrial conference to the newly
scheduled pretrial conference date.
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STATE v. BRIDGEFORD
Cite as 298 Neb. 156
7. Trial: Motions for Continuance: Time. An indefinite continuance of
trial runs from the day of the motion until either the defendant’s notice
of a request for trial or the date set for trial by the court’s own motion.
8. Motions for Continuance: Time. Any motion to continue that fails to
set forth at the outset a definite length of time is indefinite.
9. Appeal and Error. When an issue is raised for the first time in an
appellate court, it will be disregarded inasmuch as a lower court cannot
commit error in resolving an issue never presented and submitted to it
for disposition.
Appeals from the District Court for Saunders County: M ary
C. Gilbride, Judge. Affirmed.
Jennifer D. Joakim for appellant Gerard Bridgeford.
Mark A. Steele, of Steele Law Office, for appellant Judith
Bridgeford.
Douglas J. Peterson, Attorney General, and Siobhan E.
Duffy for appellee.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
K elch, and Funke, JJ.
Wright, J.
NATURE OF CASE
The defendants in these consolidated appeals assert that the
district court erred in denying their motions for absolute dis-
charge. The district court determined that under the plain lan-
guage of Neb. Rev. Stat. § 29-1207(4)(b) (Reissue 2016), the
defendants had permanently waived their statutory speedy trial
right by requesting continuances that resulted in moving their
trial dates from a date within the statutory 6-month period to
a date outside the statutory 6-month period. The defendants
dispute the court’s reading of § 29-1207(4)(b) and argue that
the permanent waiver set forth therein does not apply because
they requested continuances for a definite rather than an indef-
inite period of time. They also argue that they should not be
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STATE v. BRIDGEFORD
Cite as 298 Neb. 156
deemed to have permanently waived their statutory right to a
speedy trial when the requested continuances were reasonable
and not motivated by gamesmanship.
BACKGROUND
Gerard Bridgeford and Judith Bridgeford were charged on
June 3, 2014, with several crimes. Gerard was charged with
10 counts of possessing marijuana with intent to deliver and
5 counts of possession of marijuana with intent to deliver to
minors. Judith was charged with 10 counts of aiding and abet-
ting possession of marijuana with intent to deliver and 5 counts
of aiding and abetting possession of marijuana with intent to
deliver to minors.
Their trials were set for September 24, 2014. On August
14, Gerard filed a motion to continue his scheduled trial. On
August 15, the court granted Gerard’s motion to continue. The
court set a new date of September 22 for Gerard’s status hear-
ing and set the jury trial for October 15.
Judith similarly moved for a continuance on August 18,
2014, which the court granted that same date. The court set
the new date for Judith’s status hearing for September 29. The
court did not set a new trial date at that time.
On September 17, 2014, Gerard moved to continue his status
hearing from September 22 to September 29. The court granted
the motion.
At Judith’s status hearing on September 29, 2014, the court
granted Judith’s motion to remove her case from the trial
docket. She explained that she intended to file a motion to sup-
press. Gerard’s status hearing is not in the record.
On October 6, 2014, both Gerard and Judith filed motions
to suppress. On January 5, 2015, the court denied the motions
and set status hearings for January 26.
On January 13, 2015, Gerard and Judith both filed motions
to continue their January 26 status hearings. On January 16,
the court granted the motions. The court rescheduled the status
hearings to February 9.
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STATE v. BRIDGEFORD
Cite as 298 Neb. 156
At their status hearings on February 9, 2015, Gerard and
Judith moved to continue trial in order to complete depositions.
The court set June 25 as their new trial date.
On May 11, 2015, Gerard and Judith again moved to con-
tinue their trials. The court granted the motions and set a new
trial date for August 26.
The State filed a motion for joinder on May 18, 2015. At a
hearing on June 23 to consider the State’s motion, Gerard and
Judith both moved to further continue their trials. The court
granted the motions, setting status hearings for September 14,
with the trial dates to be determined at that time. The court did
not consider the motion for joinder.
At the September 14, 2015, status hearing, the court granted
Gerard’s and Judith’s motions for continuances on the ground
that depositions were still being conducted. The court set status
hearings for October 26.
On October 26, 2015, Gerard and Judith moved to con-
tinue the date of their status hearings. The court rescheduled
the hearings to December 21, with the trial dates to be set at
that time.
On December 17, 2015, Gerard and Judith moved to con-
tinue the December 21 status hearings. The court rescheduled
the hearings for February 8, 2016.
On February 5, 2016, Gerard and Judith moved to con-
tinue the February 8 status hearings. On February 8, the
court granted the motions and rescheduled the hearings for
April 25.
The status hearings finally took place as scheduled on April
25, 2016. And Gerard and Judith stated at the hearing that they
were ready to proceed to trial. The court set their trials for
December 12.
On June 3, 2016, the hearing was held on the State’s
motion for joinder. However, no ruling on the motion is in
the record.
On September 9, 2016, Judith filed a motion for absolute
discharge, alleging that both her statutory and constitutional
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STATE v. BRIDGEFORD
Cite as 298 Neb. 156
speedy trial rights had been violated. On October 3, Gerard
filed a motion for absolute discharge alleging the same.
After a hearing, the court overruled the motions. The court
reasoned that under § 29-1207(4)(b), both Gerard and Judith
permanently waived their statutory right to a speedy trial when
they requested a continuance that resulted in a trial date within
the statutory 6-month period’s being moved to a date outside
of the statutory 6-month period. The court did not expressly
address Gerard’s and Judith’s constitutional right to a speedy
trial. Gerard and Judith each appealed.
ASSIGNMENTS OF ERROR
Gerard and Judith both assign that the district court erred
in failing to grant their motions for absolute discharge on the
ground that their statutory and constitutional speedy trial rights
were violated.
Gerard asserts that his motion for absolute discharge should
have been granted for the additional reason that he was denied
due process.
STANDARD OF REVIEW
[1] Statutory interpretation presents a question of law, which
we resolve independently of the conclusion reached by the
trial court.1
ANALYSIS
Statutory R ight
Gerard and Judith argue that they did not permanently
waive their statutory right to a speedy trial, as determined
by the district court. 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
1
See, e.g., Pettit v. Nebraska Dept. of Corr. Servs., 291 Neb. 513, 867
N.W.2d 553 (2015).
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STATE v. BRIDGEFORD
Cite as 298 Neb. 156
or her counsel extends the trial date beyond the statutory
six-month period.” Gerard and Judith do not deny that their
requests for continuances extended the trial date beyond the
6-month period. Rather, they assert that the waiver language
of § 29-1207(4)(b) does not apply because they requested
continuances for a definite period of time and for good reason.
These are not relevant factors in the waiver inquiry.
In State v. Gill,2 we recently reiterated that the waiver lan-
guage contained in § 29-1207(4)(b) was added in response to
the concurring opinion in State v. Williams.3 The concurring
opinion criticized the fact that the statutory scheme at that
time allowed the speedy trial clock to follow the State dur-
ing potentially years of aggregate individual continuances by
the defendant. During such extended period, the defendant
could wait and hope that the State would make a mistake in
calculating excludable periods, and thereby obtain absolute
discharge of the charges without any showing of prejudice.
The concurrence in Williams suggested that the Legislature
should consider providing for permanent waiver of the statu-
tory right to a speedy trial once a defendant extends the
trial date beyond the statutory 6-month period. That is pre-
cisely what the Legislature did with the waiver language of
§ 29-1207(4)(b).
We held in Gill that § 29-1207(4)(b) “provides for a ‘per-
manent waiver’” regardless of whether the continuance was
for a definite or indefinite period of time.4 We explained that
there is no language in the statute suggesting that only if the
continuance was indefinite does a defendant waive his or her
statutory right to a speedy trial.
2
State v. Gill, 297 Neb. 852, ___ N.W.2d ___ (2017). See, also, State v.
Vela-Montes, 287 Neb. 679, 844 N.W.2d 286 (2014); State v. Mortensen,
287 Neb. 158, 841 N.W.2d 393 (2014).
3
State v. Williams, 277 Neb. 133, 761 N.W.2d 514 (2009) (Wright, J.,
concurring; Heavican, C.J., and Connolly, J., join).
4
State v. Gill, supra note 2, 297 Neb. at 862, ___ N.W.2d at ___.
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STATE v. BRIDGEFORD
Cite as 298 Neb. 156
We also repeated in Gill what we had explained in State v.
Mortensen5 and State v. Vela-Montes.6 The waiver language of
§ 29-1207(4)(b) is broad. It provides for a permanent waiver
regardless of the reasons for which a continuance was granted.
[2] As indicated in Gill, Mortensen, and Vela-Montes,
we will not read into the broad waiver provision of
§ 29-1207(4)(b) a meaning that is not there. Although the
amendments to § 29-1207(4)(b) were designed to prevent
abuse, it does not follow that the waiver set forth therein
applies only if the defendant’s continuance was in bad faith.
Such a case-by-case evaluation of subjective intent would be
untenable, and the statute does not provide for it.
[3] To determine if a defendant has permanently waived
his or her statutory right to a speedy trial, the inquiry is sim-
ply whether the defendant’s motion to continue resulted in
a trial date that exceeded the 6-month period, as calculated
with the excludable periods up to the date of the motion.7
The reason for and nature of the motion to continue are of
no consequence.
[4-8] The facts presented here show that Gerard and Judith
sought continuances that resulted in trial dates outside the
6-month statutory period. To calculate the 6-month clock, a
court must exclude the day the information was filed, count
forward 6 months, back up 1 day, and then add any time
excluded under § 29-1207(4).8 Excludable periods attributable
to pretrial motions such as motions to suppress, motions to
quash, demurrers, pleas in abatement, and motions for change
of venue begin on the date of filing and end on the date of
final disposition of the motions.9 Continuances of pretrial
5
State v. Mortensen, supra note 2.
6
State v. Vela-Montes, supra note 2.
7
See State v. Gill, supra note 2.
8
See State v. Williams, supra note 3.
9
See § 29-1207(4).
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STATE v. BRIDGEFORD
Cite as 298 Neb. 156
conferences are excludable from the original date of the pre-
trial conference to the newly scheduled pretrial conference
date.10 An indefinite continuance of trial runs from the day of
the motion until either the defendant’s notice of a request for
trial or the date set for trial by the court’s own motion.11 Any
motion to continue that fails to set forth at the outset a definite
length of time is indefinite.12
Absent any excludable periods, the 6-month clock would
have run for Gerard and Judith on December 3, 2014. That
trial date was first extended for Gerard for 62 days between
the August 14 motion to continue and the new trial date of
October 15. At that point, the 6-month clock would have run
for Gerard on February 3, 2015. On October 6, 2014, Gerard
filed a motion to suppress, which was not decided until January
5, 2015. Discounting overlapping days between October 6 and
October 15, 2014, this resulted in 82 more excludable days and
a new 6-month clock date of April 26, 2015.
On January 13, 2015, Gerard moved to continue his January
26 status hearing, which was rescheduled to February 9. This
was another 14 excludable days, resulting in a new speedy
trial date of May 10. At the February 9 hearing, Gerard asked
for a continuance resulting in a new trial date of June 25, well
beyond the May 10 speedy trial date considering excludable
periods up to that point. Because Gerard’s February 9 motion
to continue resulted in a trial date that exceeded the 6-month
period, as calculated with the excludable periods up to the
10
See, State v. Wells, 277 Neb. 476, 763 N.W.2d 380 (2009); State v. Craven,
17 Neb. Ct. App. 127, 757 N.W.2d 132 (2008); State v. Dailey, 10 Neb. Ct. App.
793, 639 N.W.2d 141 (2002).
11
See, § 29-1207(4)(b); State v. Wells, supra note 10; State v. Williams,
supra note 3; State v. Schmader, 13 Neb. Ct. App. 321, 691 N.W.2d 559
(2005).
12
See, State v. Schmader, supra note 11; State v. Dailey, supra note 10. See,
also, State v. Powell, 755 N.E.2d 222 (Ind. App. 2001).
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Cite as 298 Neb. 156
date of the motion, he permanently waived his statutory right
to a speedy trial.
Judith first extended her December 3, 2014, speedy trial
date when, on August 18, she filed a motion for an indefinite
continuance of her trial. The excludable period of Judith’s
motion did not end until the new trial date of June 25, 2015,
since, despite intervening motions, that was the first trial date
set after the August 18, 2014, motion. The January 13, 2015,
motion resulted in 311 excludable days and a new speedy trial
date of October 10.
On May 11, 2015, Judith asked for a continuance that
resulted in the court’s setting a new trial date for August 26.
This created 107 excludable days and a new speedy trial date
of January 25, 2016. And on June 23, 2015, Judith moved for
an indefinite continuance. At no point before January 25, 2016,
did Judith take any affirmative action to end the continuance,
nor did the court reschedule the trial date. Thus, as of January
26, Judith’s indefinite continuance resulted in a trial date that
exceeded the 6-month period as calculated with the exclud-
able periods up to the date of the motion. Judith permanently
waived her statutory speedy trial right by virtue of the June 23,
2015, motion to continue.
Gerard and Judith both permanently waived their statutory
right to a speedy trial. We find no merit to their contention
that the district court erred in failing to grant their motions for
absolute discharge on the ground that their statutory right to a
speedy trial was violated.
Constitutional Speedy Trial
and Due P rocess R ights
Likewise, we find no merit to Gerard’s and Judith’s asser-
tion that the district court erred in failing to grant their motions
for absolute discharge on the ground that their constitutional
right to a speedy trial was violated. They focus on the 231-day
delay between the time they finally stated on April 25, 2016,
that they were ready to proceed to trial and the scheduled
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Cite as 298 Neb. 156
trial date. They acknowledge that the delay up until the April
25 hearing was attributable to their own motions, and neither
makes any assertion that their ability to present a defense was
prejudiced by the delay after that time.13
[9] As for Gerard’s due process claim of oppressive delay,
assuming without deciding that such a claim could be part of
the final, appealable order presented by a ruling on a motion
for absolute discharge, that claim was not presented to the
district court in Gerard’s motion for discharge. We will not
address it for the first time in this appeal. When an issue
is raised for the first time in an appellate court, it will be
disregarded inasmuch as a lower court cannot commit error
in resolving an issue never presented and submitted to it
for disposition.14
CONCLUSION
For the foregoing reasons, we affirm the orders of the dis-
trict court.
A ffirmed.
13
See Reed v. Farley, 512 U.S. 339, 114 S. Ct. 2291, 129 L. Ed. 2d 277
(1994).
14
State v. Nadeem, 284 Neb. 513, 822 N.W.2d 372 (2012).