State v. Lintz ( 2017 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/22/2017 08:10 PM CST
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Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
STATE v. LINTZ
Cite as 298 Neb. 103
State of Nebraska, appellee, v.
Tyler A. Lintz, appellant.
___ N.W.2d ___
Filed October 27, 2017. No. S-16-1158.
1. Judgments: Speedy Trial: Appeal and Error. As a general rule, 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. Jurisdiction: Appeal and Error. Before reaching the legal issues
presented for review, it is the duty of an appellate court to determine
whether it has jurisdiction over the matter before it, irrespective of
whether the issue is raised by the parties.
3. Jurisdiction: Final Orders: Appeal and Error. For an appellate court
to acquire jurisdiction of an appeal, there must be a final order entered
by the court from which the appeal is taken.
4. Final Orders: Appeal and Error. Under Neb. Rev. Stat. § 25-1902
(Reissue 2016), an order is final for purposes of appeal if it affects a
substantial right and (1) determines the action and prevents a judgment,
(2) is made during a special proceeding, or (3) is made on summary
application in an action after judgment is rendered.
5. Speedy Trial. Addressing a claimed denial of statutory speedy trial
rights in a motion for discharge involves a relatively simple mathemati-
cal computation of whether the 6-month speedy trial clock, as extended
by statutorily excludable periods, has expired prior to the commence-
ment of trial.
6. ____. When ruling on a motion for absolute discharge pursuant to
Neb. Rev. Stat. § 29-1208 (Reissue 2016), the trial court shall make
specific findings of each period of delay excludable under Neb. Rev.
Stat. § 29-1207(4)(a) to (e) (Reissue 2016), in addition to the find-
ings under § 29-1207(4)(f). Such findings shall include the date and
nature of the proceedings, circumstances, or rulings which initiated
and concluded each excludable period; the number of days composing
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Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
STATE v. LINTZ
Cite as 298 Neb. 103
each excludable period; and the number of days remaining in which
the defendant may be brought to trial after taking into consideration all
excludable periods.
Appeal from the District Court for Scotts Bluff County,
R andall L. Lippstreu, Judge, on appeal thereto from the
County Court for Scotts Bluff County, James M. Worden,
Judge. Judgment of District Court reversed, and cause remanded
with directions.
Darin J. Knepper, Scotts Bluff County Deputy Public
Defender, for appellant.
Douglas J. Peterson, Attorney General, and Joe Meyer for
appellee.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
K elch, and Funke, JJ.
K elch, J.
INTRODUCTION
Tyler A. Lintz appeals the order of the district court for
Scotts Bluff County that affirmed the county court’s order
denying his motion for absolute discharge. Lintz claims a
violation of his statutory right to speedy trial. We reverse the
district court’s order and remand the cause to that court with
directions to remand the matter to the county court with direc-
tions to enter an order that incorporates specific findings pur-
suant to our directive in State v. Williams, 277 Neb. 133, 761
N.W.2d 514 (2009).
BACKGROUND
Lintz was arrested on suspicion of domestic assault on
February 5, 2016. On February 8, the State charged Lintz by
complaint with third degree domestic assault, a Class I misde-
meanor. See Neb. Rev. Stat. § 28-323 (Reissue 2016). Lintz
requested a jury trial.
The county court scheduled the jury trial for August 9,
2016, with jury selection to begin 2 weeks earlier on July
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Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
STATE v. LINTZ
Cite as 298 Neb. 103
26. Lintz failed to appear for the scheduled jury selection,
and the county court ordered a bench warrant. The State
amended the complaint to add a misdemeanor charge of fail-
ure to appear.
Lintz turned himself in on July 28, 2016, and that same day
waived his right to a jury trial. The county court scheduled a
bench trial for September 22.
On August 11, 2016, Lintz filed a motion for absolute dis-
charge, alleging his constitutional and statutory rights to a
speedy trial had been violated. The county court held a hear-
ing on August 16. In a subsequent written order, it considered
“[w]hether [Lintz’] right to speedy trial was violated when the
court set the case for trial beyond the six month requirement
even though [Lintz] failed to appear for jury selection before
the six month requirement had expired.” (Emphasis in origi-
nal.) The county court reasoned that jury selection is a condi-
tion precedent to a jury trial and found that by failing to appear
for jury selection, Lintz caused a delay in his trial. The county
court further stated:
Once a defendant has caused a delay due to a fail-
ure to appear for court, the time between the defend­
ant’s absence and the next reasonably available trial date
is excluded. Neb.Rev.Stat. [§] 29-1207(4)(d) [(Reissue
2016)]. The trial was rescheduled within 60 days. A trial
date scheduled within six months of the defendant’s reap-
pearance is presumed to be the next reasonably available
trial date.
The county court denied Lintz’ motion and ordered the case to
be tried on September 22, as previously scheduled.
Lintz appealed to the district court, asserting only his statu-
tory right to a speedy trial. Based on reasoning similar to the
county court’s, the district court affirmed.
Lintz now appeals to this court.
ASSIGNMENT OF ERROR
Lintz assigns as error the denial of his motion for abso-
lute discharge.
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Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
STATE v. LINTZ
Cite as 298 Neb. 103
STANDARD OF REVIEW
[1] As a general rule, 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. State v. Hettle, 288 Neb. 288, 848 N.W.2d
582 (2014).
ANALYSIS
[2-4] Before reaching the legal issues presented for review,
it is the duty of an appellate court to determine whether it has
jurisdiction over the matter before it, irrespective of whether
the issue is raised by the parties. State v. McColery, 297 Neb.
53, 898 N.W.2d 349 (2017). For an appellate court to acquire
jurisdiction of an appeal, there must be a final order entered
by the court from which the appeal is taken. Id. Under Neb.
Rev. Stat. § 25-1902 (Reissue 2016), an order is final for pur-
poses of appeal if it affects a substantial right and (1) deter-
mines the action and prevents a judgment, (2) is made during
a special proceeding, or (3) is made on summary application
in an action after judgment is rendered. State v. McColery,
supra. And we have determined that a ruling on a motion for
absolute discharge based upon an accused criminal’s nonfriv­
olous claim that his or her speedy trial rights were violated
is a ruling affecting a substantial right made during a special
proceeding and is therefore final and appealable. See State
v. Gibbs, 253 Neb. 241, 570 N.W.2d 326 (1997). Here, the
county court’s order denying Lintz’ motion for absolute dis-
charge was final and appealable. However, a final, appeal-
able order is not the only prerequisite for meaningful appel-
late review.
[5,6] Addressing a claimed denial of statutory speedy trial
rights in a motion for discharge involves a relatively simple
mathematical computation of whether the 6-month speedy
trial clock, as extended by statutorily excludable periods,
has expired prior to the commencement of trial. See State
v. Williams, 277 Neb. 133, 761 N.W.2d 514 (2009). But in
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Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
STATE v. LINTZ
Cite as 298 Neb. 103
ruling on a motion to discharge, this court unequivocally
requires specific findings regarding the statutorily exclud-
able periods:
Effective March 9, 2009, when ruling on a motion
for absolute discharge pursuant to [Neb. Rev. Stat.]
§ 29-1208 [(Reissue 2016)], the trial court shall make
specific findings of each period of delay excludable
under § 29-1207(4)(a) to (e), in addition to the findings
under § 29-1207(4)(f) . . . . Such findings shall include
the date and nature of the proceedings, circumstances, or
rulings which initiated and concluded each excludable
period; the number of days composing each excludable
period; and the number of days remaining in which the
defendant may be brought to trial after taking into con-
sideration all excludable periods.
(Emphasis supplied.) State v. Williams, 277 Neb. at 143-44,
761 N.W.2d at 524. Therefore, the county court, as part of its
ruling on Lintz’ motion for absolute discharge, was required
to set forth the above calculation as part of its findings in
applying Neb. Rev. Stat. § 29-1207(4)(d) (Reissue 2016), but
it did not.
We require this calculation of any excludable days pursuant
to § 29-1207(4)(d) to facilitate appellate review. See State v.
Williams, supra. A trial court’s determination as to whether
charges should be dismissed on speedy trial grounds is a fac-
tual question which will be affirmed on appeal unless clearly
erroneous. See State v. Hettle, 288 Neb. 288, 848 N.W.2d
582 (2014). But we cannot review whether the trial court’s
determination of the facts is erroneous unless such factual
determination is complete. Certainly, we appreciate the county
court’s issuing a written order, but without a computation
as required by State v. Williams, supra, we cannot conduct
a proper review. Accordingly, the county court’s order must
be remanded with directions to add the required computa-
tion. See Rutherford v. Rutherford, 277 Neb. 301, 761 N.W.2d
922 (2009) (remanding for failure to include child support
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Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
STATE v. LINTZ
Cite as 298 Neb. 103
worksheet which was required by our rules and which would
have facilitated meaningful review). Then, the parties may
file new appeals from the corrected order. And henceforth, if
a trial court fails to include the computation as required by
State v. Williams, supra, in its order on a motion for absolute
discharge, the appeal will be summarily remanded to the trial
court so that it can prepare the required computation.
CONCLUSION
We reverse the order of the district court and remand the
cause to the district court with directions to further remand
the matter to the county court with directions to enter specific
findings pursuant to our directive in State v. Williams, supra.
R eversed and remanded with directions.