State v. Gill ( 2017 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/06/2017 08:11 AM CDT
- 852 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
STATE v. GILL
Cite as 297 Neb. 852
State of Nebraska, appellee, v.
Joseph A. Gill, appellant.
___ N.W.2d ___
Filed September 22, 2017. No. S-16-1063.
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 ques-
tion of law, which an appellate court reviews independently of the lower
court’s determination.
3. Pleadings: Limitations of Actions: Final Orders: Appeal and Error.
A ruling on a motion to quash on the ground that the charges of the
information are allegedly outside the statute of limitations is not a final,
appealable order as defined by Neb. Rev. Stat. § 25-1902 (Reissue
2016), no matter how the motion was denominated.
4. Jurisdiction: Final Orders: Appeal and Error. An appeal from a final
order may raise every issue presented by the order that is the subject of
the appeal, but appellate jurisdiction does not extend to issues not pre-
sented by the final order.
5. ____: ____: ____. An appellate court cannot address on appeal issues
that do not bear on the correctness of the final order upon which its
appellate jurisdiction is based.
6. Pleadings: Final Orders: Appeal and Error. A litigant cannot gain
interlocutory review of an issue that does not affect a substantial right
by surreptitiously joining it to a motion that otherwise results in a
final order.
7. Speedy Trial: Motions for Continuance: Waiver. The definite or
indefinite nature of a requested continuance is irrelevant to the applica-
bility of the waiver set forth in the amended language of Neb. Rev. Stat.
§ 29-1207(4)(b) (Reissue 2016).
- 853 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
STATE v. GILL
Cite as 297 Neb. 852
Appeal from the District Court for Saunders County: M ary
C. Gilbride, Judge. Affirmed.
Mark A. Steele, of Steele Law Office, for appellant.
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
This case presents an appeal from the denial of the defend­
ant’s motion for absolute discharge. The defendant and the
State dispute whether defendant’s motion to continue the trial
date outside the statutory 6-month period constituted a perma-
nent waiver, under Neb. Rev. Stat. § 29-1207(4)(b) (Reissue
2016), of the statutory speedy trial right. Alternatively, they
dispute what periods of delay were attributable to the State or
to the defendant.
BACKGROUND
On November 9, 2015, Joseph A. Gill was charged with
seven counts of first degree sexual assault, see Neb. Rev. Stat.
§ 28-319(1)(a) (Reissue 2016), and two counts of incest, see
Neb. Rev. Stat. § 28-703 (Reissue 2016). Counts I through
III alleged sexual assault on or about September 21, 1996,
to June 10, 2002, on T.H., born in 1989. Count IV alleged
sexual assault on T.H. on or about September 21, 1997, to
September 20, 1998. Count V alleged sexual assault on T.H.
on or about September 21, 1998, to September 2, 2002, and
count VI alleged sexual assault on T.H. on or about June 3 to
10, 2002.
Count VII alleged incest with T.H. on or about September
21, 1996, to June 10, 2002.
Count VIII alleged sexual assault on K.A., born in 1998,
on or about January 1, 2005, to December 31, 2006. Lastly,
- 854 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
STATE v. GILL
Cite as 297 Neb. 852
count IX alleged incest with K.S., born in 1998, on or about
January 1, 2005, to December 31, 2006.
On November 16, 2015, Gill moved to quash the informa-
tion on the ground that the charges were time barred under
Neb. Rev. Stat. § 29-110 (Reissue 2016).
Section 29-110(8) currently provides that there is no stat-
ute of limitations for charges of incest and first degree sexual
assault of a child. Prior to an amendment in 2005, however, the
statute of limitations for first degree sexual assault of a child
was 7 years from the date of the offense or within 7 years after
the victim’s 16th birthday, whichever was later.1 The 2005
amendment explicitly applies to offenses committed before
September 4, 2005, for which the statute of limitations had not
expired as of September 4, 2005, as well as to offenses com-
mitted on or after that date.2
And it was not until 2009 that the Legislature added the
crime of incest to its list of crimes in § 29-110(8) that are
without any time limitations for prosecution or punishment.3
This 2009 amendment applies to offenses committed before
May 21, 2009, for which the statute of limitations had not
expired as of that date, as well as to offenses committed on
or after May 21, 2009.4 Before the effective date of the 2009
amendment, incest was governed by the general 3-year statute
of limitations.5
The court ruled on the motion to quash on February 4,
2016. The court concluded that the charges of sexual assault
in counts I through V were timely brought because the stat-
ute of limitations on these charges had not yet expired as of
September 4, 2005. Likewise, the court found that count VIII
1
2005 Neb. Laws, L.B. 713.
2
See § 29-110(14).
3
2009 Neb. Laws, L.B. 97.
4
See § 29-110(15).
5
§ 29-110(1) (Reissue 2008).
- 855 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
STATE v. GILL
Cite as 297 Neb. 852
was timely brought. The court sustained Gill’s motion to
quash as to count VII. The court also partially sustained Gill’s
motion to quash as to count IX, to the extent the crime was
alleged to have occurred before May 21, 2006.
Gill was rearraigned on the first eight charges on March
21, 2016, with the incest charge that was previously count IX
described as count VIII. Apparently, no amended information
had been filed. Trial was set for July 13.
On June 20, 2016, Gill orally moved to continue trial for
the reason that he had not completed taking depositions. The
court granted the motion. As a result of the continuance, trial
was set for September 14. Gill did not object to the new
trial date.
On July 6, 2016, the State obtained a continuance because
the victim for counts VII and VIII was pregnant, with a due
date of September 13. The State conceded in its motion that
Gill would not consent to the continuance. At the hearing
on the motion, defense counsel stated that he understood the
situation and “would just ask the Court . . . if [it’s] going to
grant the State’s motion to continue, that it be a short one.”
The court granted the continuance and set a new trial date for
October 12.
On October 11, 2016, the State applied for and was given
leave to amend the information, over Gill’s objection. The
amended information omitted the ninth charge, that the court
had previously ordered quashed and which was omitted in the
description of the charges when Gill was rearraigned. And the
amended information corrected the date of what was newly
designated as “count VIII,” in order to conform to the court’s
prior order finding that the charge was timely brought only
to the extent it alleged acts occurring before May 21, 2006.
The principal purpose of the amended information, how-
ever, was to add facts supporting habitual criminal enhance-
ment of the potential sentences. Except for changes made to
conform to the court’s prior order partially granting Gill’s
motion to quash and the addition of the habitual criminal
- 856 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
STATE v. GILL
Cite as 297 Neb. 852
a­llegations, the amended information was the same as the
original information.
At the hearing on the State’s motion to amend the infor-
mation, defense counsel stated that he would not be ready to
proceed the next day for the scheduled trial on the amended
information; he needed a reasonable opportunity to look it over
and discuss the enhanced penalties with Gill. The court granted
defense counsel what the court characterized as a request for
additional time and it set a new trial date for November 16,
2016. Defense counsel did not object at the hearing to the new
trial date.
On November 4, 2016, Gill again filed a motion to quash,6
on the ground that counts I through VI stated in the information
were time-barred. At the hearing, defense counsel explained
that he was renewing his motion on the statute of limitations
in order to preserve the issue for trial. Also on November 4,
Gill filed a separate motion for absolute discharge based on
the alleged violations of both his statutory7 and constitutional
rights to a speedy trial.
The court issued an order on November 14, 2016. The court
stated in its order that the matters to be addressed were Gill’s
two motions, but it ultimately explicitly ruled only on the
motion for absolute discharge. There appears in the record no
ruling on the November 4 motion to quash, and nothing in the
record demonstrates that Gill insisted on a ruling.
Relying on our interpretation of § 29-1207(4)(b) in State v.
Hettle8 and State v. Mortensen,9 the district court found that
Gill had made a permanent and unequivocal waiver of his stat-
utory right to a speedy trial by requesting a continuance that
6
See Neb. Rev. Stat. § 29-1808 (Reissue 2016). See, also, e.g., State v.
Loyd, 269 Neb. 762, 696 N.W.2d 860 (2005).
7
§ 29-1207.
8
State v. Hettle, 288 Neb. 288, 848 N.W.2d 582 (2014).
9
State v. Mortensen, 287 Neb. 158, 841 N.W.2d 393 (2014).
- 857 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
STATE v. GILL
Cite as 297 Neb. 852
extended the trial date beyond the statutory 6-month period.
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 or her counsel extends the trial
date beyond the statutory six-month period.”
Alternatively, the court found that without such a perma-
nent waiver, the total period of delay attributable to the State
was still only 168 days. The court did not explicitly address
Gill’s constitutional speedy trial right, but generally denied the
motion for absolute discharge. Gill filed this appeal within 30
days of the November 14, 2016, order.
ASSIGNMENTS OF ERROR
Gill assigns that the district court erred in (1) denying his
motion for absolute discharge insofar as it alleged that he was
not brought to trial within the statutory time period under
§ 29-1207, (2) denying his motion for absolute discharge
insofar as it alleged that he was denied his constitutional right
to a speedy trial, and (3) failing to consider Gill’s motion
to quash due to the failure of the State to file the informa-
tion within the statutory time period from the date of the
alleged offenses.
STANDARD OF REVIEW
[1] Generally, 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.10
[2] Statutory interpretation presents a question of law, which
an appellate court reviews independently of the lower court’s
determination.11
10
State v. Hood, 294 Neb. 747, 884 N.W.2d 696 (2016).
11
Id.
- 858 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
STATE v. GILL
Cite as 297 Neb. 852
ANALYSIS
A ppellate Jurisdiction
Neb. Rev. Stat. § 25-1911 (Reissue 2016) limits appellate
jurisdiction to a judgment rendered or final order. Without a
conviction and sentence, there has not yet been a judgment
rendered below12; thus, we consider the extent to which we are
presented with a final order.
The only type of final order potentially present here is
“an order affecting a substantial right made in a special
proceeding.”13 We have held many times that a ruling on a
motion for absolute discharge based upon an accused crimi-
nal’s nonfrivolous 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 appeal-
able.14 Absolute discharge provided for by Neb. Rev. Stat.
§ 29-1208 (Reissue 2016) bestows a right not to be tried
equivalent to that of the Double Jeopardy Clause.15 Such a
right would not be effectively vindicated in an appeal after
the trial has taken place.16 The parties do not dispute the
applicability of these propositions to the court’s order deny-
ing absolute discharge.
[3] But the State correctly points out that a ruling on a
motion to quash on the ground that the charges of the infor-
mation are allegedly outside the statute of limitations is not
a final, appealable order as defined by § 25-1902, no matter
how the motion was denominated.17 As explained in State v.
12
See, Neb. Rev. Stat. § 25-1301(1) (Reissue 2016); In re Interest of
Wolkow, 206 Neb. 512, 293 N.W.2d 851 (1980); State v. Irwin, 191 Neb.
169, 214 N.W.2d 595 (1974).
13
Neb. Rev. Stat. § 25-1902 (Reissue 2016).
14
State v. Gibbs, 253 Neb. 241, 570 N.W.2d 326 (1997).
15
See State v. Williams, 277 Neb. 133, 761 N.W.2d 514 (2009).
16
See id.
17
See State v. Loyd, supra note 6.
- 859 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
STATE v. GILL
Cite as 297 Neb. 852
Loyd,18 the statutes of limitations do not set forth a remedy
of absolute discharge. We have concluded that, in contrast to
speedy trial or double jeopardy claims,19 a ruling on the statute
of limitations does not affect a substantial right.20
Also, the order presently being appealed does not actually
contain a ruling on Gill’s motion to quash. The court implicitly
rejected Gill’s constitutional speedy trial argument in denying
his motion for absolute discharge that raised both statutory
and constitutional speedy trial arguments. But in its November
15, 2016, order concluding that Gill was not entitled to abso-
lute discharge, the court did not implicitly reject Gill’s statute
of limitations argument that was raised in a separate motion
to quash.
While Gill alternatively asserts it was error for the court to
fail to address his second motion to quash, the onus is on the
movant to insist upon a ruling below before bringing the issue
to the appellate courts.21 Moreover, even if, in the face of a
defendant’s insistence, a court refuses to rule on the merits of a
motion, the court’s refusal to rule would be no more final than
a ruling on the motion would have been.
[4-6] An appeal from a final order may raise every issue
presented by the order that is the subject of the appeal, but
our appellate jurisdiction does not extend to issues not pre-
sented by the final order.22 We cannot address on appeal issues
that do not bear on the correctness of the final order upon
which our appellate jurisdiction is based.23 A litigant cannot
gain interlocutory review of an issue that does not affect a
substantial right by surreptitiously joining it to a motion that
18
Id.
19
See State v. Gibbs, supra note 14.
20
Id.
21
See, e.g., State v. Dean, 270 Neb. 972, 708 N.W.2d 640 (2006).
22
See id.
23
See id.
- 860 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
STATE v. GILL
Cite as 297 Neb. 852
otherwise results in a final order.24 A determination of the
statute of limitations has no bearing on the correctness of a
speedy trial determination.
The November 15, 2016, order upon which our appellate
jurisdiction is based did not dispose of the statute of limita-
tions issue, and even if it had, the portion of the order address-
ing the statute of limitations would not be final for purposes
of this interlocutory appeal. Accordingly, we do not have juris-
diction to consider Gill’s assignment of error pertaining to his
motion to quash.
Statutory R ight to
Speedy Trial
We turn first to Gill’s statutory right to a speedy trial. The
trial court’s primary reason for rejecting Gill’s motion for dis-
charge based on his statutory right to a speedy trial was that
pursuant to § 29-1207(4)(b), Gill had permanently waived his
statutory right to a speedy trial by asking for a continuance
that resulted in extending a trial date beyond the statutory
6-month period. Although the order does not specify, it is clear
from the record it refers to Gill’s June 20, 2016, motion.
Section 29-1207(4) generally sets forth the periods to be
excluded in computing the time for trial. Section 29-1207(4)(b)
concerns continuances granted at the request or with the con-
sent of the defendant. That subsection has long provided that
the period of delay resulting from a continuance granted at the
request of the defendant is excluded in computing the time
for trial.
But before 2010, the delay caused by a continuance was
never a permanent waiver of the right to a speedy trial. Rather,
the delay caused by the continuance granted for the defendant
was simply excluded from the 6-month period and counted
against the defendant.25
24
State v. Loyd, supra note 6.
25
See State v. Wells, 277 Neb. 476, 763 N.W.2d 380 (2009).
- 861 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
STATE v. GILL
Cite as 297 Neb. 852
In 2010, the Legislature added the following language to
§ 29-1207(4)(b) (Cum. Supp. 2010):
A defendant who has sought and obtained a continuance
which is indefinite has an affirmative duty to end the con-
tinuance by giving notice of request for trial or the court
can end the continuance by setting a trial date. When the
court ends an indefinite continuance by setting a trial
date, the excludable period resulting from the indefinite
continuance ends on the date for which trial commences.
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
or her counsel extends the trial date beyond the statutory
six-month period.
This language, particularly the language pertaining to continu-
ances that extend the trial date beyond the statutory 6-month
period, was added in direct response to concerns about the
statutory scheme expressed by the concurring opinion in State
v. Williams.26
In Williams, we affirmed the denial of absolute discharge
after a complicated analysis of motions by the State and the
defendant that delayed trial for nearly 4 years.27 Defense
motions, many of them motions for continuances, resulted
in 1,242 days of excludable time. The concurring opinion
pointed out the flaw of a statutory scheme that allows for mul-
tiple lengthy delays by the defense, which can be strategically
made in the hopes that the State will lose sight of the speedy
trial calculations.28
26
State v. Williams, supra note 15 (Wright, J., concurring; Heavican, C.J.,
and Connolly, J., join). See, also, State v. Mortensen, supra note 9;
Judiciary Committee Hearing, L.B. 1046, 101st Leg., 2d Sess. 15-16 (Feb.
19, 2010).
27
See State v. Williams, supra note 15.
28
Id. (Wright, J. concurring; Heavican, C.J., and Connolly, J., join).
- 862 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
STATE v. GILL
Cite as 297 Neb. 852
If the State lost sight of the speedy trial clock, then the
defendant was entitled under the statutory scheme to absolute
discharge based on a simple mathematical computation and no
showing of actual prejudice. The concurring opinion explained,
“Similar to the crocodile that followed ‘Captain Hook,’ time
keeps following the State, and the accused hopes the State will
slip and fall victim to the 6-month trial clock.”29
The concurring opinion in Williams suggested that this
abuse could be prevented through an amendment to the speedy
trial statutes providing that once a defendant extends the
trial date beyond the required 6 months, he or she shall be
deemed to have waived the statutory 6-month trial require-
ment.30 The concurrence explained that in such circumstances,
the defendant would still be protected by the constitutional
right to a speedy trial, with its four-part balancing test that
includes a determination of whether the defendant was actu-
ally prejudiced.31
Thus, § 29-1207(4)(b) (Reissue 2016) now states that
“[a] defendant is deemed to have waived his or her right to
speedy trial when the period of delay resulting from a con-
tinuance granted at the request of the defendant or his or her
counsel extends the trial date beyond the statutory six-month
period.” We explained the meaning of this amended language
in Mortensen.32 We said that it provides for a “permanent
waiver of the statutory right to a speedy trial.”33 “[R]eading
§ 29-1207(4)(b) as a whole, if a defendant requests a con-
tinuance that moves a trial date which has been set within the
29
Id. at 148, 761 N.W.2d at 527 (Wright, J., concurring; Heavican, C.J., and
Connolly, J., join).
30
See State v. Williams, supra note 15 (Wright, J. concurring; Heavican, C.J.,
and Connolly, J., join).
31
See, id.; United States v. MacDonald, 435 U.S. 850, 98 S. Ct. 1547, 56 L.
Ed. 2d 18 (1978).
32
State v. Mortensen, supra note 9.
33
Id. at 165, 841 N.W.2d at 400.
- 863 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
STATE v. GILL
Cite as 297 Neb. 852
statutory 6-month period to a date that is outside the 6-month
period,” that request “constitutes a permanent waiver of the
statutory speedy trial right.”34 We further said that the “broad
language” of § 29-1207(4)(b) “does not specify the reasons
for which a continuance must be granted in order to result in a
waiver of the statutory right to a speedy trial.”35
We reasoned, “There is no language in the statute that
indicates an intent to limit the scope of the waiver provided
therein, and ‘an appellate court will not “read into a statute a
meaning that is not there.”’”36 We approved of such a broad
and permanent waiver as a means of curtailing the abuse by
defense motions for continuance criticized in Williams.37 In this
regard, we noted that the speedy trial statutes do not protect the
interests of just the defendant. They also protect the govern-
ment and the public’s interest in bringing the accused to trial at
an early date. “A primary purpose of the statutes is to promote
a speedy trial, not to delay it.”38
Much of our opinion in Mortensen addressed our con-
clusion that defense motions to discharge, which must be
addressed by the trial court and necessitate an adjournment
while being resolved by an interlocutory appeal, are requests
for continuances even though not denominated as such.39
Applying this holding to the facts in Mortensen, we found that
the defend­ant’s motion to discharge resulted in continuing the
trial beyond the statutory 6-month period. Thus, the defendant
had permanently waived his statutory right to a speedy trial
and the exact calculation of days remaining on the speedy trial
clock was no longer required.
34
Id.
35
Id. at 167, 841 N.W.2d at 401.
36
Id. at 165, 841 N.W.2d at 400.
37
See State v. Williams, supra note 15 (Wright, J., concurring; Heavican,
C.J., and Connolly, J., join).
38
State v. Mortensen, supra note 9, 287 Neb. at 169, 841 N.W.2d at 402.
39
See State v. Mortensen, supra note 9.
- 864 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
STATE v. GILL
Cite as 297 Neb. 852
In State v. Vela-Montes,40 we were again confronted with the
waiver language of § 29-1207(4)(b) in the context of a delay
due to a motion for absolute discharge resulting in a trial date
outside of the 6-month period. The motion for discharge, which
under Mortensen was considered a motion to continue, was
filed when there were only 17 days remaining on the speedy
trial clock, as calculated up to that point with excludable
periods under § 29-1207. We found that as of the time of our
opinion, the continuance was still in effect pending resolution
of the appeal and had moved the trial well beyond the 17 days
remaining when the defendant filed the motion. Because the
motion to continue resulted in extending the trial beyond the
statutory 6-month period, as calculated on the date the motion
was filed, the defendant had waived the statutory speedy trial
right and no further examination of days on the speedy trial
clock was required.
Gill argues that the trial court erred in concluding that he
had permanently waived his statutory right to a speedy trial
because his request for a continuance was for a definite period
rather than indefinite. Further, Gill asserts that the trial court’s
ruling has the absurd result that “any affirmative action or
filing by a criminal defendant would constitute a permanent
waiver.”41 We find no merit to these arguments.
Gill filed a motion to continue, not just any motion. The
period of delay resulting from other proceedings such as hear-
ings on competency, motions to quash, motions to suppress
evidence, motions for change of venue, demurrers or pleas in
abatement is described in § 29-1207(4)(a), not § 29-1207(4)(b).
There is no language in § 29-1207(4)(a) regarding a permanent
waiver of the right to a speedy trial.
Furthermore, permanent waiver occurs only when the
6-month period, as calculated up to that date with exclud-
able periods, has been exceeded by virtue of the motion. The
40
State v. Vela-Montes, 287 Neb. 679, 844 N.W.2d 286 (2014).
41
Brief for appellant at 14.
- 865 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
STATE v. GILL
Cite as 297 Neb. 852
court’s ruling that Gill waived his right to a speedy trial in no
way implies that any filing by a defendant would permanently
waive the statutory right to a speedy trial.
There is nothing in the language of § 29-1207(4)(b) that
would suggest that only indefinite continuances extend-
ing the trial date beyond the statutory 6-month period per-
manently waive the statutory right to a speedy trial. While
§ 29-1207(4)(b) was amended to add language pertaining to
indefinite continuances at the same time that it was amended
to add the language pertaining to permanent waiver, the two
sentences are not directly related.
By its plain language, the sentence pertaining to indefinite
continuances clarifies when the excludable period resulting
from the indefinite continuance ends. In contrast, the perma-
nent waiver set forth in the last sentence of § 29-1207(4)(b)
does not concern excludable periods except to the extent they
are implicitly part of the 6-month trial date calculated at the
time of a motion to continue.42 The waiver sentence at issue in
this case refers to “a continuance granted at the request of the
defendant or his or her counsel.”43 There is no modifier limit-
ing the waiver to indefinite continuances as opposed to definite
continuances. As we have said many times, we will not read
into a statute a meaning that is not there.44
Likewise, our opinions in Williams, Mortensen, and Vela-
Montes do not suggest that only indefinite continuances
extending the trial date beyond the statutory 6-month period
permanently waive the statutory right to a speedy trial.45
We can find no logical reason why indefinite continuances
would be treated differently from definite continuances for
this purpose. The defendant waives the statutory 6-month
42
See State v. Vela-Montes, supra note 40.
43
§ 29-1207(4)(b).
44
See, e.g., State v. Mortensen, supra note 9.
45
See, State v. Vela-Montes, supra note 40; State v. Mortensen, supra note 9;
State v. Williams, supra note 15.
- 866 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
STATE v. GILL
Cite as 297 Neb. 852
period when he or she requests a continuance that extends
the trial date beyond the statutory 6-month period. Once the
defendant does that, the statutory clock is gone. This per-
manent waiver is designed to prevent the abuse illustrated
in Williams, where the State remained bound to vigilance
of the strictly mathematical speedy trial clock during years
of repeated motions by the defendant to continue. That kind
of abuse occurred no less through definite than through indefi-
nite continuances.
[7] We held in Mortensen that the reason for the continu-
ance is irrelevant to whether the defendant has waived the
statutory right to a speedy trial under the amended language
of § 29-1207(4)(b). We now hold that the definite or indefinite
nature of a requested continuance is irrelevant to the appli-
cability of the waiver set forth in the amended language of
§ 29-1207(4)(b).
When Gill moved to continue trial on June 20, 2016, the
6-month speedy trial clock was set to have run on July 27.
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).46
Excludable periods attributable to a motion begin on the day
immediately after the filing and end on the date of final dis-
position.47 Absent any excludable periods, the 6-month clock
would have run on May 9, 2016. Seventy-nine excludable days
attributable to Gill’s motion to quash on November 16, 2015,
are added to this date.
Gill agreed pursuant to his motion that trial would be
rescheduled to September 14, 2016, 49 days beyond the statu-
tory 6-month period ending July 27, as calculated on the date
Gill filed the motion to continue. Thus, Gill permanently
waived his statutory right to a speedy trial.
46
See State v. Williams, supra note 15.
47
State v. Baker, 264 Neb. 867, 652 N.W.2d 612 (2002); State v. Long, 206
Neb. 446, 293 N.W.2d 391 (1980).
- 867 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
STATE v. GILL
Cite as 297 Neb. 852
We find no error in the trial court’s factual calculation
that Gill requested a continuance that extended the trial date
beyond the statutory 6-month period. And we agree with
the trial court’s legal conclusion that under § 29-1207(4)(b),
Gill thereby permanently waived his statutory right to a
speedy trial.
Constitutional R ight to
Speedy Trial
We consider Gill’s constitutional right to a speedy trial. As
we said in Williams, a defendant who has permanently waived
his or her statutory right to a speedy trial is still protected by
the constitutional right to a speedy trial.48 However, we find
no merit to Gill’s constitutional speedy trial claim.
CONCLUSION
For the foregoing reasons, we affirm the order of the trial
court denying Gill’s motion for absolute discharge.
A ffirmed.
48
See State v. Williams, supra note 15.