State v. Carrera , 25 Neb. Ct. App. 650 ( 2018 )

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www.nebraska.gov/apps-courts-epub/
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STATE v. CARRERA
Cite as 25 Neb. Ct. App. 650
State of Nebraska, appellee, v.
K im M. Carrera, appellant.
___ N.W.2d ___
Filed March 27, 2018. No. A-17-098.
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. 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 pro-
vided 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 dis-
charge 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
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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 exclud-
able 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 dis-
missal of an information and refiling is not includable, or is tolled, for
purposes of the statutory 6-month period. However, any nonexclud-
able time that passed under the original information is tacked onto any
nonexcludable time under the refiled information, if the refiled infor-
mation 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
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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 balanc-
ing 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 consid-
ered 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).
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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 pro-
tected 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 sentenc-
ing laws.) On September 4, Carrera filed a waiver of prelimi-
nary 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 discov-
ery 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 deposi-
tions—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.
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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 L.B. 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 A ppeal
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.
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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 deposi-
tions, which was granted by the court on December 14. Also
on December 14, the court filed an order setting the case for a
jury trial on March 15, 2016.
On December 18, 2015, Carrera filed a motion for a bill
of particulars. The motion was to be heard on December 28,
but the court, on its own motion, continued the hearing to
December 30. In an order filed on December 31, the court
denied Carrera’s request for a bill of particulars.
On January 12, 13, and 15, 2016, Carrera filed motions for
depositions. All three motions for depositions were granted on
January 25.
While the above motions for depositions were pending,
Carrera filed two motions to suppress on January 20, 2016.
One motion sought to suppress evidence obtained as a result
of two searches of her home and/or her arrest, as well as any
statements she made at the time of the incident, her arrest, or
during the two searches. The other motion sought to suppress
evidence obtained as a result of the search of C.W.’s telephone
and residence; the State later objected to this motion based on
Carrera’s “lack of standing.” The court set an evidentiary hear-
ing for February 4.
On February 4, 2016, Carrera filed a motion to continue
the hearing on her motion to suppress scheduled for that day.
Carrera alleged that on February 3, the Honorable Max J.
Kelch (the district court judge in Carrera’s case) was appointed
as a Nebraska Supreme Court justice; the parties and Judge
Kelch’s bailiff had a telephone conference wherein the par-
ties were informed that the hearing would not take place as
scheduled and that the matter would be heard by a visiting
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judge. During the telephone conference, “the [d]efense was
asked to draw up” the motion to continue and defense counsel
emphasized Carrera would not waive speedy trial and stood
firm on her trial date set for March 15. On February 5, the
district court (Judge Kelch) granted the motion to continue
and ordered that the motions to suppress would be “set before
Judge Zastera.”
The trial docket case summary notes for February 9, 2016,
state, “Case having been reassigned to the Honorable Wm.
B. Zastera, Motion to Suppress now fixed for full hearing on
April 28 . . . .” (Emphasis omitted.) But the summary notes
for April 8 state that on the court’s own motion, the “mat-
ter is now fixed for full hearing on the motion to suppress
for April 22.” And the summary notes for April 20 indicate
that the “State’s request for Continuance, over the vehement
objection of [Carrera’s] Counsel, is sustained. Matter now
fixed for full hearing on Motion to Suppress on May 3 . .
. . Hearing heretofore scheduled for April 22 . . . cancelled.”
(Emphasis omitted.)
On April 27, 2016, Carrera filed a stipulated motion to
unseal search warrants, which motion was signed by her attor-
ney and the State. On May 2, the court ordered the search war-
rants unsealed for the purpose of evaluating Carrera’s motion
to suppress, “set for hearing on May 3.” However, on May 3,
the court, on its own motion, continued the motion to suppress
hearing to May 10.
On May 10, 2016, the matter came before the court on
Carrera’s motion to suppress. However, at the start of the
hearing, the State asked for a continuance and offered into
evidence the affidavit of Det. James Munsey of the Bellevue
Police Department, which affidavit stated he was unavailable
for the hearing that day because he was appearing as a witness
in another trial. The court asked the defense if they objected.
Carrera’s counsel responded, “I guess I wouldn’t object to
the affidavit being received by you. But then as long as the
objection is noted by defense in terms of a continuance, that
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would be it from us.” The court noted Carrera’s objection,
but found good cause for the continuance due to Detective
Munsey appearing in another case. The matter was continued
to June 17.
On June 17, 2016, the matter once again came before the
court on the motion to suppress. However, Bellevue police
officers Allison Evans and Roy Howell, two of the State’s wit-
nesses, were not available that day—Officer Evans was out of
state on military leave until June 20 and Officer Howell was
out of state on vacation until July 5. The State offered support-
ing affidavits regarding the officers’ absences into evidence,
and they were received without objection. The State intended
to go forward without Officer Howell that day, but could not
proceed without Officer Evans, who was the “primary contact
officer.” However, Carrera’s counsel preferred to “have one
day to do everything and not bifurcate it”; that was the court’s
preference as well. As a result, the matter was continued to
August 2.
On July 28, 2016, Carrera filed an amended motion to sup-
press. The amended motion, regarding the search of her resi-
dence and her arrest, added an additional allegation in support
of her motion.
After a hearing on August 2, 2016, the court filed its
opinion and order on August 22 overruling Carrera’s motion
to suppress. The matter was set for a pretrial hearing on
September 16.
At the pretrial hearing on September 16, 2016, the matter
was set for a jury trial on November 10.
On November 3, 2016, Carrera filed a motion for dismissal
and/or absolute discharge based on the alleged violations of
both her statutory and constitutional rights to a speedy trial.
The motion was set for hearing on November 7. The trial
docket summary notes for November 7 state: “On Motion
of [Carrera’s] Counsel, matter continued to December 12 . .
. . Trial heretofore scheduled for November 10 . . . cancelled
pending ruling on Motion to Discharge.” (Emphasis omitted.)
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On December 12, 2016, the matter came before the court
on Carrera’s motion to dismiss and for absolute discharge. The
court issued an opinion and order on January 3, 2017, over-
ruling Carrera’s motion to discharge. The court found varying
days remained in which to bring Carrera to trial on each of the
respective counts charged. The court found there was no viola-
tion of her statutory or constitutional right to a speedy trial.
Carrera appeals.
III. ASSIGNMENTS OF ERROR
Carrera assigns, consolidated and restated, that the district
court erred (1) in failing to grant her motion for dismissal and/
or absolute discharge on the grounds that her statutory and
constitutional speedy trial rights were violated and (2) in its
calculation of the includable and excludable days for purposes
of Neb. Rev. Stat. §§ 29-1207 and 29-1208 (Reissue 2016).
IV. STANDARD OF REVIEW
[1] 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. State v. Gill, 297 Neb. 852, 901 N.W.2d
679 (2017).
[2] Statutory interpretation presents a question of law, which
an appellate court reviews independently of the lower court’s
determination. Id.
V. ANALYSIS
1. Statutory Speedy Trial Claim
[3-7] The statutory right to a speedy trial is set forth in
§§ 29-1207 and 29-1208. State v. Vela-Montes, 287 Neb. 679,
844 N.W.2d 286 (2014). Under § 29-1207(1), “Every person
indicted or informed against for any offense shall be brought
to trial within six months, and such time shall be computed
as provided in this section.” 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
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up 1 day, and then add any time excluded under § 29-1207(4).
State v. Vela-Montes, supra. Under § 29-1208, if a defendant
is not brought to trial before the running of the time for trial
as provided for in § 29-1207, 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. State v. Vela-Montes, supra. The
burden of proof is upon the State to show that one or more of
the excluded time periods under § 29-1207(4) are applicable
when the defendant is not tried within 6 months. State v.
Williams, 277 Neb. 133, 761 N.W.2d 514 (2009). 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. Id.
[8] For cases commenced with a complaint in county court
but thereafter bound over to district court, the 6-month statu-
tory speedy trial period does not commence until the filing of
the information in district court. State v. Hettle, 288 Neb. 288,
848 N.W.2d 582 (2014).
This case commenced with the filing of a criminal complaint
against Carrera in county court, but was thereafter bound over
to the district court. The original information was filed in
district court on December 10, 2015. Thus, in the absence of
any excludable period, the 6-month period in which the State
was required to bring Carrera to trial in Sarpy County District
Court case No. CR15-851 would have ended on June 10, 2016.
As will be discussed later, this is the speedy trial clock for
count I (tampering with physical evidence). The speedy trial
clock for counts II (child abuse) and III (second degree sexual
abuse of protected individual) may be different because of the
tacking and tolling of time from those charges being dismissed
in earlier cases and refiled in this case.
[9,10] We must add any time excluded under § 29-1207(4)
to the original speedy trial deadline to determine the last per-
missible day to bring Carrera to trial on each count. Under
§ 29-1207(4), as relevant in this case:
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The following periods shall be excluded in computing
the time for trial:
(a) The period of delay resulting from other proceed-
ings concerning the defendant, including, but not limited
to, an examination and hearing on competency and the
period during which he or she is incompetent to stand
trial; the time from filing until final disposition of pretrial
motions of the defendant, including motions to suppress
evidence, motions to quash the indictment or informa-
tion, demurrers and pleas in abatement, and motions for
a change of venue; and the time consumed in the trial of
other charges against the defendant;
(b) The period of delay resulting from a continuance
granted at the request or with the consent of the defendant
or his or her counsel. . . . 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;
(c) The period of delay resulting from a continuance
granted at the request of the prosecuting attorney, if:
(i) The continuance is granted because of the unavail-
ability of evidence material to the state’s case, when
the prosecuting attorney has exercised due diligence to
obtain such evidence and there are reasonable grounds to
believe that such evidence will be available at the later
date; [and]
....
(f) Other periods of delay not specifically enumerated
in this section, but only if the court finds that they are for
good cause.
The plain terms of § 29-1207(4)(a) exclude all time between
the time of the filing of a defendant’s pretrial motions and
their final disposition, regardless of the promptness or rea-
sonableness of the delay. State v. Williams, 277 Neb. 133,
761 N.W.2d 514 (2009). Such motions include a defendant’s
motion to suppress evidence and a motion for discovery filed
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by the defendant. Id. The excludable period commences on
the day immediately after the filing of a defendant’s pretrial
motion. Id. Final disposition under § 29-1207(4)(a) occurs
on the date the motion is “‘“‘granted or denied.’”’” State v.
Williams, 277 Neb. at 141, 761 N.W.2d at 522. “Pursuant to
§ 29-1207(4)(a), it is presumed that a delay in hearing defense
pretrial motions is attributable to the defendant unless the
record affirmatively indicates otherwise.” State v. Williams,
277 Neb. at 141, 761 N.W.2d at 522.
(a) Time on All Three Counts in District
Court Case No. CR15-851
The district court found that “363 total days have run on the
speedy trial clock in CR 15-851. Of those days, . . . 292 days
were tolled” for various motions and continuances, but the
court does not give the specific number of days tolled for each
item mentioned. The only other specific reference to the num-
ber of days excluded in district court case No. CR15-851 fol-
lows an entry for August 22, 2016, which states, “[Carrera’s]
motion to suppress is denied. Speedy trial clock restarts (212
days excluded).” However, we cannot tell when that 212 days
started. If the 212 days were continuous, it would mean the
excludable period started on Saturday, January 23, a date that
is not supported by this record. And if the time started when
Carrera filed her motion to suppress on January 20, 212 days
later would be Friday, August 19, which was before the motion
was ruled on. In short, because the district court did not pro-
vide specific calculations, we are unable to explain where
the district court’s numbers come from. As stated in State
v. Williams:
Effective March 9, 2009, when ruling on a motion for
absolute discharge pursuant to § 29-1208, 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) currently required by
[State v. Alvarez, 189 Neb. 281, 202 N.W.2d 604 (1972)].
Such findings shall include the date and nature of the
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proceedings, circumstances, or rulings which initiated
and concluded each excludable period; the number of
days composing each excludable period; and the num-
ber of days remaining in which the defendant may be
brought to trial after taking into consideration all exclud-
able periods.
277 Neb. at 143-44, 761 N.W.2d at 524 (emphasis supplied).
We will conduct a speedy trial calculation based on our
review of the record in order to determine whether the district
court was clearly erroneous in overruling Carrera’s motion for
absolute discharge. As stated previously, the original informa-
tion was filed in district court on December 10, 2015. Thus, in
the absence of any excludable period, the 6-month period in
which the State was required to bring Carrera to trial in Sarpy
County District Court case No. CR15-851 would have ended
on June 10, 2016. Obviously, no trial had taken place almost
5 months after that original deadline when Carrera filed her
motion for absolute discharge on November 3. We now con-
sider what excludable periods would have properly extended
the original June 10 deadline.
On December 10, 2015, the same day the information was
filed, Carrera filed a motion for depositions, which was dis-
posed of on December 14. The period of time from the day
after the defendant filed a motion for depositions until the
trial court authorized the depositions should be excluded under
§ 29-1207(4)(a). See State v. Williams, 277 Neb. 133, 761
N.W.2d 514 (2009). See, also, State v. Feldhacker, 267 Neb.
145, 672 N.W.2d 627 (2004) (first excludable day was day
after defendant filed pretrial motions; cases suggesting dif-
ferent method of computation disapproved). Thus, 4 days are
excluded. We note that in Carrera’s brief, she failed to account
for this excludable period.
On December 18, 2015, Carrera filed a motion for a bill
of particulars, which was denied on December 31. Thus, 13
days are excluded. In Carrera’s brief, she agrees that this time
is excludable.
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On January 12, 13, and 15, 2016, Carrera filed motions
for depositions. Those motions were still pending on January
20, when Carrera filed her motions to suppress. The motions
for depositions were resolved on January 25, but the motions
to suppress were repeatedly continued and not resolved until
August 22. The excludable times overlap, and if all of the
time for the motions to suppress is excluded, then a total of
223 days is excluded (January 12 to August 22). The State
argues this is the correct number of days excluded. If all 223
days are excluded (January 12 to August 22), then a total of
240 days (4 + 13 + 223) must be added to the original speedy
trial deadline of June 10. Adding 240 days takes us to Sunday,
February 5, 2017, making the last permissible day for trial
Monday, February 6 (without taking into account any addi-
tional time considerations for counts II and III as discussed
later in this opinion). If the last permissible day for trial was
February 6, then the speedy trial clock had not yet expired
when Carrera filed her motion for discharge on November
3, 2016.
However, Carrera argues that certain time periods after her
motions to suppress were filed, but before they were ruled on,
should not be attributable to her. Specifically, she argues the
court erred in excluding the 76 days that fell between February
4 and April 20, 2016, because those days were attributable to
the court. She further argues the court erred in excluding the
days that passed since April 20 to August 22, because those
delays were wholly attributable to the State. Those dates, and
our determinations, are as follows.
(i) February 4 to April 20, 2016
On February 4, 2016, Carrera filed a motion to continue
the hearing on her motions to suppress scheduled for that day,
apparently at the direction of the court, due to Judge Kelch’s
appointment to the Nebraska Supreme Court. On February 5,
Judge Kelch granted the motion to continue and ordered that
the motions to suppress would be “set before Judge Zastera,”
who, on February 9, set the hearing for April 28. But, on
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April 8, on the court’s own motion, the hearing was set for
April 22. Then, on April 20, over the defense’s objection, the
court sustained the State’s request for a continuance, and the
hearing was set for May 3.
Carrera relies on State v. Wilcox, 224 Neb. 138, 395 N.W.2d
772 (1986), to argue the 76 days outlined above should be
attributable to the court and should not have been excluded
in computing the time for trial. In Wilcox, the Nebraska
Supreme Court held that a defendant was denied his right to
a speedy trial where a motion to suppress filed by the defend­
ant was not ruled on until 1 year 7 months 24 days after it
was filed. The motion was first heard less than 2 weeks after
filing, but was continued for further hearing (which was to be
held slightly over 1 month after the motion to suppress was
filed). However, the further hearing was not held at that time
because the judge recused himself (there was a nearly 2-month
delay from the time the judge notified counsel of his intent to
recuse himself and the formal recusal, at which time a sec-
ond judge contacted counsel). Thereafter, the record indicated
no action in the case for 1 year 4 months 10 days. Then, a
third judge received the transcript on the hearing conducted
before the first judge and ruled on the motion 16 days later.
The Nebraska Supreme Court concluded that the defendant’s
rights under § 29-1207 had been violated. The court said under
§ 29-1207(4)(a), generally, the time from filing to final dis-
position of the defendant’s pretrial motions is excluded from
computation. However, in addressing the time period after the
substituted judge had been assigned to the case, the Nebraska
Supreme Court said that for 16 days of the 1-year 4-month
26-day period from the formal recusal to resolution, the record
showed the motion was actively under advisement; the rest of
the time in question it lay dormant. “This delay cannot con-
ceivably be described as a reasonable, ordinary consequence
of filing one motion.” State v. Wilcox, 224 Neb. at 142, 395
N.W.2d at 774. Referencing § 29-1207(4)(f), the court found
that judicial delay, absent a showing of good cause, does not
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suspend a defendant’s right to a speedy trial. “[A] court can-
not table a motion and thereby suspend the defendant’s right
where judicial delay [without a showing of good cause under
§ 29-1207(4)(f)] would otherwise warrant discharge.” State v.
Wilcox, 224 Neb. at 143, 395 N.W.2d at 775.
However, the Nebraska Supreme Court has “clarified Wilcox
by pointing out that where the excludable period properly falls
under § 29-1207(4)(a) rather than the catchall provision of
§ 29-1207(4)(f), no showing of reasonableness or good cause is
necessary to exclude the delay.” State v. Turner, 252 Neb. 620,
629, 564 N.W.2d 231, 237 (1997). See, also, State v. Lafler,
225 Neb. 362, 405 N.W.2d 576 (1987), abrogated on other
grounds, State v. Oldfield, 236 Neb. 433, 461 N.W.2d 554
(1990). The Nebraska Supreme Court has said that
unlike the requirement in § 29-1207(4)(f) that any
delay be for “good cause,” conspicuously absent from
§ 29-1207(4)(a) is any limitation, restriction, or qualifica-
tion of the time which may be charged to the defendant
as a result of the defendant’s motions. Rather, the plain
terms of § 29-1207(4)(a) exclude all time between the
time of the filing of the defendant’s pretrial motions and
their final disposition, regardless of the promptness or
reasonableness of the delay.
State v. Turner, 252 Neb. at 629, 564 N.W.2d at 237. See, also,
State v. Lafler, supra.
In State v. Turner, supra, an information was filed by
the State against the defendant on July 15, 1994, charging
him with numerous crimes. The defendant filed four discov-
ery motions on September 26 that were set to be heard on
October 5, but no hearing was held on that date. On January
5, 1995, the State moved for a continuance on the grounds
that the Federal Bureau of Investigation had not completed
its DNA analysis of certain evidence. The defendant opposed
the motion, but the trial court granted the continuance, find-
ing that under § 29-1207(4)(c)(i) there was a legitimate pur-
suit of evidence which had not yet been obtained through
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no fault of the prosecution. Trial was set for the March jury
panel. But on February 8, the defendant moved to dismiss
based on violations of his statutory and constitutional rights
to speedy trial. The defendant’s motion was accompanied by
a notice of hearing on February 14, but the motion was not
heard that day. The defendant later filed additional motions.
After a hearing on May 11, the defendant’s motion to dismiss
was overruled, with the trial court reiterating its finding that
under § 29-1207(4)(c)(i), the continuance was for a legitimate
pursuit of evidence. The defendant’s motion to continue was
granted, and a new trial date was set for July 17. But trial was
continued on the defendant’s motion. Trial eventually began on
November 13, and the defendant was subsequently convicted
of certain crimes.
On appeal, the defendant in Turner raised violations of
his speedy trial rights, and the Nebraska Supreme Court
considered what, if any, periods of time from July 15, 1994,
to November 13, 1995, were properly excluded from the
6-month speedy trial computation. The court noted that neither
the defendant’s discovery motions nor his motion to suppress
were held on their scheduled dates, but were instead all heard
on May 11. The defendant argued that “only those periods
during which the motions were reasonably pending, which he
contend[ed] [was] that period between the initial filing and the
first scheduled hearing, should be excluded.” State v. Turner,
252 Neb. at 628, 564 N.W.2d at 237. After discussing State v.
Wilcox, 224 Neb. 138, 395 N.W.2d 772 (1986), and State v.
Lafler, 225 Neb. 362, 405 N.W.2d 576 (1987), the Nebraska
Supreme Court held, “In the case at bar, the evidence does not
establish that the delay in hearing [the defendant’s] motion
was attributable to judicial neglect.” State v. Turner, 252
Neb. at 630, 564 N.W.2d at 238. The court said that “[t]o
the contrary, the hearing on May 11, 1995, indicates that the
reason for the delay was [the defendant’s] counsel’s failure
to adequately pursue the motions.” Id. “[I]t will be presumed
that a delay in hearing defense pretrial motions is attributable
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to the defendant unless the record affirmatively indicates oth-
erwise.” Id.
This court has also distinguished State v. Wilcox, supra. In
State v. Johnson, 22 Neb. Ct. App. 747, 860 N.W.2d 222 (2015),
the defendant argued that the time it took the district court
to rule on a motion to suppress constituted an inordinate
and unreasonable delay and that sometime during that delay,
he was denied a speedy trial. The defendant filed a motion
to suppress on January 17, 2013. The motion was heard on
March 20, and the district court took the motion under advise-
ment. The court entered an order overruling the motion to
suppress on December 2. On appeal, this court noted that the
defendant relied heavily on the outcome in State v. Wilcox,
supra, as support for his assertion that even though the period
of time at issue in his case involved the period of time it took
the court to rule on his pretrial motion to suppress, it was an
unreasonable period of time for such a ruling and constituted
judicial delay without a showing of good cause. However, this
court said:
Since its ruling in State v. Wilcox, supra, the Nebraska
Supreme Court has clarified its ruling and consistently
rejected the argument that [the defendant] makes in this
case, by drawing a distinction between cases where the
period of delay properly falls under § 29-1207(4)(a)
and cases where the period of delay properly falls under
the catchall provision of § 29-1207(4)(f). See, State v.
Covey, 267 Neb. 210, 673 N.W.2d 208 (2004); State v.
Turner[, 252 Neb. 620, 564 N.W.2d 231 (1997)]; State v.
Lafler, 225 Neb. 362, 405 N.W.2d 576 (1987), abrogated
on other grounds, State v. Oldfield, 236 Neb. 433, 461
N.W.2d 554 (1990). In State v. Lafler, supra, the court
clarified that where the excludable period properly falls
under § 29-1207(4)(a) rather than the catchall provision
of § 29-1207(4)(f), no showing of reasonableness or good
cause is necessary to exclude the delay.
The court explained that the delay in State v. Wilcox,
224 Neb. 138, 395 N.W.2d 772 (1986), was not based on
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one of the specifically enumerated or described periods of
delay under § 29-1207(4)(a). State v. Lafler, supra. Rather,
the delay in State v. Wilcox, supra, in the court’s actually
assigning and hearing the defendant’s motion was attrib-
utable to judicial neglect and fell under § 29-1207(4)(f),
wherein other periods of delay not specifically enumer-
ated are excludable, but only if the court finds that they
are for good cause. State v. Lafler, supra.
State v. Johnson, 22 Neb. Ct. App. at 752-53, 860 N.W.2d at 227-
28 (emphasis in original). This court said that the record dem-
onstrated Johnson’s motion was heard and taken under advise-
ment and that “there [was] nothing to suggest any kind of
judicial neglect comparable to that in State v. Wilcox, supra.”
State v. Johnson, 22 Neb. Ct. App. at 754, 860 N.W.2d at 228.
Accordingly, we found that the district court correctly con-
cluded the entire time attributed to the motion to suppress was
properly excluded and that the court was not clearly erroneous
in so holding.
We find the 76 days that fell between February 4 and April
20, 2016 (due to appointment of Judge Kelch to Nebraska
Supreme Court, causing case to be reassigned), should be
attributable to Carrera’s motion to suppress as reasonable
delay. Unlike in State v. Wilcox, 224 Neb. 138, 395 N.W.2d
772 (1986), there was no evidence of judicial neglect.
(ii) April 20 to August 22, 2016
On April 20, 2016, over the defense’s objection, the court
sustained the State’s request for a continuance, and the hear-
ing on the motions to suppress that had been set for April 22
was rescheduled for May 3. And on May 3, the court, on its
own motion, continued the hearing on the motions to suppress
to May 10. (We note there was an intervening motion filed
on April 27, when Carrera filed a stipulated motion to unseal
search warrants; on May 2, the court ordered the search war-
rants unsealed for the purpose of evaluating Carrera’s motions
to suppress.) There is no evidence as to why the State needed
a continuance on April 20. Even though the State’s motion to
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continue occurred while Carrera’s pretrial motions to suppress
were still pending, we will give Carrera the benefit of assum-
ing that the 20 days that fell between April 20 and May 10
should be attributable to the State (for its failure to make a
showing under § 29-1207(c)) and thus should not be exclud-
able from the speedy trial clock. See State v. Williams, 277
Neb. 133, 141, 761 N.W.2d 514, 522 (2009) (“[p]ursuant to
§ 29-1207(4)(a), it is presumed that a delay in hearing defense
pretrial motions is attributable to the defendant unless the
record affirmatively indicates otherwise”).
On May 10, 2016, the matter came before the court on
Carrera’s motions to suppress. However, at the start of the
hearing, the State asked for a continuance, due to the unavail-
ability of Detective Munsey, who was appearing as a witness
in another trial that same day. The court noted Carrera’s objec-
tion to the continuance, but found good cause, and the matter
was continued to June 17. There was no evidence as to why
Detective Munsey was material to the State’s case. Again, even
though the State’s motion to continue occurred while Carrera’s
pretrial motions to suppress were still pending, we will give
Carrera the benefit of assuming that the 38 days that fell
between May 10 and June 17 should be attributable to the State
(for its failure to make a showing under § 29-1207(c)) and thus
should not be excludable from the speedy trial clock. See State
v. Williams, supra.
On June 17, 2016, the matter once again came before the
court on the motions to suppress. And once again, the State
requested a continuance, this time because two of the State’s
witnesses were unavailable—Officer Evans was on military
leave and Officer Howell was on vacation. The State intended
to go forward without Officer Howell that day, but could not
proceed without Officer Evans, who was the “primary contact
officer.” However, Carrera’s counsel’s “suggestion” and prefer-
ence was to “have one day to do everything and not bifurcate
it”; that was the court’s preference as well. As a result, the mat-
ter was continued to August 2. The motions to suppress were
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heard on August 2 and denied on August 22. There were 46
days that fell between June 17 and August 2. These days were
excludable from the speedy trial clock under § 29-1207(4)
(a) (due to Carrera’s pretrial motions to suppress), and/or
§ 29-1207(4)(b) (continuance granted at request or with con-
sent of defendant or his or her counsel). The 20 days (August
2 to 22) that the motions to suppress were under advisement
are properly attributable to Carrera and are excluded from the
speedy trial clock.
(iii) Calculation of Time
Before recalculating, we recall that the original speedy trial
deadline was June 10, 2016. When adding the total possible
excludable dates between December 10, 2015, and August 22,
2016, we reached a total of 240 days. That resulted in Monday,
February 6, 2017, being the last possible day for trial. However,
as stated in our discussion above, we will assume that 58 days
during the pendency of Carrera’s motions to suppress were
attributable to the State. This reduces the 240 excludable days
we calculated earlier to a total of 182 days excluded between
December 10, 2015, and August 22, 2016 (240 − 58 = 182).
Adding the 182 excludable days to the original speedy trial
deadline of June 10, makes the last permissible day for trial
Friday, December 9, 2016. Because Carrera’s motion to dis-
charge was filed on November 3, the speedy trial clock would
not have run, at least as to count I (tampering with physical
evidence), which was a charge that was initially filed in this
case. Accordingly, as to count I, the court did not err in over-
ruling Carrera’s motion for discharge based upon her statutory
right to a speedy trial.
[11] However, the speedy trial clock for counts II (child
abuse) and III (second degree sexual abuse of protected indi-
vidual) may be different because of the tacking and tolling of
time from those charges being dismissed in earlier cases and
refiled in this case. See State v. Hettle, 288 Neb. 288, 848
N.W.2d 582 (2014) (time between dismissal of information
and refiling is not includable, or is tolled, for purposes of
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statutory 6-month period; however, any nonexcludable time
that passed under original information is tacked onto any
nonexcludable time under refiled information, if refiled infor-
mation alleges same offense charged in previously dismissed
information). We now consider any additional time from the
previously dismissed cases that must be tacked on to the cur-
rent case.
(b) Additional Time for
Count II (Child Abuse)
This is the same charge as was dismissed in district court
case No. CR15-631. In that case, the State filed a “Direct
Information” in the district court on September 16, 2015,
charging Carrera with one count of child abuse, a Class IIIA
felony, under § 28-707(1)(d) and (e). On September 18, Carrera
filed separate motions to take depositions and for discovery.
Those motions had not been resolved at the time the case was
dismissed without prejudice on September 21. The time from
September 16 to 21 was a total of 5 days.
The district court found in its opinion and order in the
instant case that of the 5 days district court case No. CR15-631
was pending, 3 days were tolled (September 18 to 21, 2015)
due to Carrera’s motion for discovery. And thus, 2 days ran on
the speedy trial clock and needed to be “tacked” to the speedy
trial clock time for count II in the instant case.
The State agrees that 2 days from district court case No.
CR15-631 had run on the speedy trial clock for count II in
the instant case; however, the State attributes the 3 days tolled
(September 18 to 21, 2015) to Carrera’s motion to take deposi-
tions. In Carrera’s brief, she does not exclude any days from
district court case No. CR15-631 (September 16 to 21) in her
speedy trial calculation.
However, after consideration of the record and review-
ing State v. Boslau, 258 Neb. 39, 601 N.W.2d 769 (1999),
a case that was not mentioned by either party or the district
court, it appears the speedy trial clock never began running
in district court case No. CR15-631, which was filed as a
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“Direct Information.” As stated in Boslau, ordinarily, when
an individual is charged with the commission of a felony, a
complaint is filed in county court. Thereafter, a preliminary
hearing is held to determine if probable cause exists to charge
the defendant with the commission of the crimes alleged in
the complaint, and if probable cause is found, the defendant
is bound over to district court where an information is filed.
Id. “Under the foregoing scenario, pursuant to § 29-1207, the
statutory 6-month speedy trial period begins to run upon the
filing of the information in district court which is subsequent
to the preliminary hearing.” State v. Boslau, 258 Neb. at 43,
601 N.W.2d at 773. See, also, Neb. Rev. Stat. § 29-1607
(Reissue 2016).
[12,13] But, contrary to the foregoing practice, “in a case
where a ‘direct information’ has been filed, the commence-
ment of the 6-month period for speedy trial act purposes
occurs upon either the finding of probable cause at a prelimi-
nary hearing or the date the defendant waives the preliminary
hearing.” State v. Boslau, 258 Neb. at 46, 601 N.W.2d at 774.
The Nebraska Supreme Court clarified the proper procedure
as follows:
Under § 29-1607, it is clear that the 6-month speedy
trial time period cannot begin to run until after the pre-
liminary hearing finding probable cause is held or a
preliminary hearing is waived by the defendant. Prior
to the finding of probable cause or until a preliminary
hearing is waived, the direct information is treated as a
complaint. State v. Thomas, 236 Neb. 84, 459 N.W.2d
204 (1990). Once probable cause is found or a pre-
liminary hearing is waived, however, the information
is transformed into a true information. For purposes of
calculating the 6-month speedy trial act time period in a
direct information case, the direct information should be
deemed filed the day the order is entered finding prob-
able cause or the day the defendant waives the prelimi-
nary hearing, and the speedy trial act calculations should
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be measured from either of these events. Pursuant to our
case law interpreting the speedy trial act, the statutory
6-month speedy trial time period begins to run the day
following the filing of the information, and 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.
State v. Boslau, 258 Neb. at 45, 601 N.W.2d at 774.
There is no evidence that a preliminary hearing was held
in district court case No. CR15-631 or that Carrera waived
the preliminary hearing. That being the case, there was not a
“true information” filed in that case and the statutory 6-month
speedy trial time period never began to run. Accordingly,
no days from district court case No. CR15-631 will be
“tacked” to count II in the instant case (district court case
No. CR15-851). As a result, just like in count I above, Friday,
December 9, 2016, was the last permissible day for trial for
count II. Because Carrera’s motion to discharge was filed on
November 3, 2016, the speedy trial clock would not have run.
Accordingly, as to count II, the court did not err in overruling
Carrera’s motion for discharge based upon her statutory right
to a speedy trial.
(c) Additional Time for Count III
(Second Degree Sexual Assault
of Protected Individual)
This is the same charge as was dismissed in district court
case No. CR15-586. In that case, the State initially filed a
criminal complaint in the county court on August 31, 2015,
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). On September 4, Carrera filed a waiver
of preliminary hearing, and the case was bound over to district
court on September 8.
The 6-month speedy trial period commenced on September
16, 2015, when the State filed an information in the district
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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). This case was ultimately dismissed
without prejudice on November 9. Although the district court
stated the time from September 16 to November 9 was a total
of 53 days, we count a total of 54 days. We now consider how
many of those 54 days were excludable.
On September 16, 2015, Carrera filed separate motions to
take depositions and for discovery; the motion to take depo-
sitions included various witnesses, one of which was the
alleged victim, C.W. These motions tolled the speedy trial
clock. See § 29-1207(4)(a). On September 21, Carrera’s writ-
ten motion for discovery was denied after a hearing; 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). So, either 5 days (September 16 to 21) were excludable if
all motions were ruled on or, if no ruling was made on the writ-
ten motion to take depositions, then all time from September
16 to the November 9 dismissal was excludable.
On October 26, 2015, Carrera filed motions to release
property and to compel, but those motions were not disposed
of prior to the dismissal on November 9. Thus, 14 days
were excludable (although the district court incorrectly said
13 days).
The district court found that of the 53 days district court
case No. CR15-586 was pending, 5 days were excludable due
to Carrera’s motions for depositions and discovery (September
16 to 21, 2015) and 13 days were excludable due to Carrera’s
motions to compel and to release property (October 26 to
November 9). Accordingly, the district court found that “53
total days had run on the speedy trial clock . . . . Of those days,
35 days were tacked and 18 days were tolled.”
Both Carrera and the State agree with the district court that
5 days were excludable due to Carrera’s motions for deposi-
tions and/or discovery, but say 14 days (rather than the court’s
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finding of 13 days) were excludable for the motions to compel
and to release property which had not been resolved before the
case was dismissed. The State then says there are “a total of
19 days excluded of the 53 that have run. This means that 35
days have run on this charge under the original information.”
Brief for appellee at 15. (However, we note that 19 days plus
35 days does not equal 53 days, it equals 54 days.) In Carrera’s
brief, she also states that 19 days (September 16 to 21 and
October 26 to November 9, 2015) are excludable from dis-
trict court case No. CR15-586 in her speedy trial calculation.
Therefore, both Carrera and the State appear to agree that 19
days should be excluded.
We agree that assuming all deposition and discovery
motions filed on September 16, 2015, were disposed of
on September 21 (which as noted earlier, the record is not
entirely clear on this issue), then a total of 19 days were
excludable (5 + 14 discussed above). Therefore, out of the 54
days this case was pending, 35 days had already run on the
speedy trial clock for count III in the current case, and the last
permissible day for trial on count III was Friday, November
4, 2016 (35 days before the December 9 deadline for counts
I and II). This date includes the benefit we have previously
given to Carrera of assuming that 58 days were attributable
to the State in district court case No. CR15-851, even though
Carrera’s pretrial motion to suppress was still pending in that
case. Because Carrera’s motion to discharge was filed on
November 3, the speedy trial clock would not have expired.
Accordingly, as to count III, the court did not err in overrul-
ing Carrera’s motion for discharge based upon her statutory
right to a speedy trial.
(d) Waiver of Statutory
Speedy Trial Right
[14] As stated in State v. Mortensen, 287 Neb. 158, 169-70,
841 N.W.2d 393, 402-03 (2014):
[A] defendant’s motion to discharge based on statutory
speedy trial grounds will be deemed to be a waiver of
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that right under § 29-1207(4)(b) 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 cal-
culated on the date the motion to discharge was filed,
(2) discharge is denied, and (3) that denial is affirmed
on appeal.
Carrera waived her statutory right to a speedy trial under
§ 29-1207(4)(b) by filing an unsuccessful motion to discharge
that necessitated continuing the trial beyond the statutory
6-month period. Because Carrera has waived her statutory right
to a speedy trial under § 29-1207(4)(b), we are not required
to calculate the days remaining to bring her to trial under
§ 29-1207. See State v. Mortensen, supra. Once the district
court reacquires jurisdiction over the cause, it is directed to set
the matter for trial.
2. Constitutional Speedy Trial Claim
[15] The State claims that Carrera did not argue her consti-
tutional speedy trial claim in her brief. We find Carrera’s argu-
ment on her constitutional claim to be minimal, with no in-
depth analysis or reference to case law. However, for the sake
of completeness, we briefly address her claim. See State v.
Johnson, 22 Neb. Ct. App. 747, 860 N.W.2d 222 (2015) (although
there is no right to interlocutory appeal solely concerning
constitutional right to speedy trial, overruling of motion alleg-
ing denial of speedy trial based upon constitutional grounds
pendent to nonfrivolous statutory claim may be reviewed on
appeal from that order).
[16] 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.
State v. Brooks, 285 Neb. 640, 828 N.W.2d 496 (2013). 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. Id. None of these four fac-
tors standing alone is a necessary or sufficient condition to the
finding of a deprivation of the right to speedy trial. Id. Rather,
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the factors are related and must be considered together with
other circumstances as may be relevant. Id.
Carrera filed her motion to dismiss on November 3, 2016,
less than 6 months after the original speedy trial deadline
(regardless of the count charged). Although Carrera did assert
her right to a speedy trial during the pendency of the case,
the majority of the delay was due to her own pretrial motions.
Additional delay was due to her agreement to a continuance
or for good cause (i.e., when Judge Kelch was appointed to
Nebraska Supreme Court and case had to be reassigned).
Finally, she has not shown prejudice. See State v. Betancourt-
Garcia, 295 Neb. 170, 887 N.W.2d 296 (2016) (in analyzing
prejudice factor there are three aspects: (1) preventing oppres-
sive pretrial incarceration, (2) minimizing anxiety and concern
of defendant, and (3) limiting possibility that defense will be
impaired by dimming memories and loss of exculpatory evi-
dence). The district court noted that Carrera was not currently
incarcerated while awaiting disposition of the counts charged;
Carrera neither asserted nor showed the delay weighed par-
ticularly heavily on her; and nothing in the record illustrated
Carrera’s defense had been impaired by the delay.
We agree with the district court that when all four fac-
tors are balanced, it is clear that there had been no denial of
Carrera’s constitutional right to a speedy trial. Accordingly, the
court did not err in overruling Carrera’s motion for discharge
based upon her constitutional right to a speedy trial.
VI. CONCLUSION
For the foregoing reasons, we affirm the decision of the
district court.
A ffirmed.