State v. Johnson , 201 Neb. 322 ( 1978 )

Brodkey, J.

The issue presented in this case is whether Otis C. Johnson, III, defendant and appellant herein, was brought to trial within 6 months of the commencement of this criminal action against him as required by section 29-1207, R. R. S. 1943. In a complaint filed in the county court of Red Willow County on August 18, 1976, the defendant was charged with operating a motor vehicle while his operator’s license was revoked. On May 6, 1977, the defendant moved for dismissal on the ground that he had not been tried within 6 months of the filing of the complaint. • Defendant’s motion was overruled after a hearing, and he was tried on May 13, 1977, and found guilty as charged. The District Court affirmed defendant’s conviction. He has now appealed to this court, contending that his conviction should be reversed because he was not tried within 6 months of the filing of the complaint. We reverse.

The complaint in this case was filed on August 18, 1976. A continuance was granted at defendant’s request from August 26, 1976, to September 2, 1976, to enable him to secure counsel, and on September 2nd the defendant appeared with counsel and pled not guilty. County court records indicate that thereafter trial dates were set for September 22nd and November 4th, but a trial was not held on either of those dates. Neither the county court records, nor the evidence presented at the hearing on defendant’s motion to dismiss, disclose the reason for those postponements. There was no evidence that the defendant moved for a continuance during this time period, or that he or his counsel consented to a continuance. The case was eventually set for trial on February 16, 1977.

On February 14, 1977, the defendant’s counsel moved for a continuance on the grounds that defendant would be outside the state conducting business on February 16th, and would be unable to appear for trial. This motion was overruled on February 15th, and defendant was ordered to show cause on February 24th why he should not be held in contempt of court. The defendant did not appear at the show cause hearing because he was again outside the state conducting business, and he was held in contempt of court. A warrant was issued for his arrest on March 3, 1977. On March 16th, the defendant appeared in the county court, and county court records indicate that he was ordered to appear for trial on May 13, 1977. Neither the court records nor the evidence presented at the hearing, however, shed any light on the circumstances surrounding the setting of the May 13th trial date. There was no evidence whatsoever that the defendant or his counsel consented to the May 13th trial date, or that the defendant was advised of his right to a speedy trial and waived such right. The evidence at the hearing disclosed that the county court docket was not congested on March 16th; and, in fact, there is evidence that trial dates were being moved up rather than being set back. Moreover, there is no evidence in the record that May 13th was the earliest date possible for defendant’s trial.

After the hearing on defendant’s motion to dismiss, the trial court made specific findings concerning what time periods should be included in computing whether the defendant had been brought to trial within 6 months of the filing of the complaint. It concluded that the period of time between the filing of the complaint on August 18, 1976, and February 14, 1977, with the exception of a 7-day continuance granted to the defendant to obtain counsel, should be included in the computation; and that the period between February 14th to March 16th should be excluded because the defendant was outside the jurisdiction and not available for trial during that time period. The trial court also concluded that the period of time after March 16th should be excluded because the trial date of May 13th “was arrived at with the consent of the defendant’s counsel.” The trial court specifically stated: “I am also going to exclude that period of time from March 16th to the present for purposes of computation, and I do so on the basis of again the defendant’s Motion for Continuance by the consent under section 29-1207 4B. I feel that although there was not a formal Motion for a Continuance or an objection to said continuance, I do feel that the trial date that was set on May the * * * 13th was arrived at with the consent of the defendant’s counsel and I * * * I’m basing it strictly on the basis — on the fact that I believe the defendant’s counsel did consent to the setting of that date.”

Section 29-1207, R. R. S. 1943, provides that every person charged with a criminal offense shall be brought to trial within 6 months. In cases commenced and tried in the county court, the 6-month period begins to run on the date the complaint is filed. See, State v. Stevens, 189 Neb. 487, 203 N. W. 2d 499 (1973); State v. Born, 190 Neb. 767, 212 N. W. 2d 581 (1973). Subsection (4) of section 29-1207, R. R. S. 1943, provides that certain periods of time shall be excluded in computing the time for trial. Such periods, as are relevant in this case, include: (1) The period of delay resulting from a continuance granted at the request or with the consent of the defendant or his counsel; (2) the period of delay resulting from the absence or unavailability of the defendant; and (3) other periods of delay not specifically enumerated, but only if the court finds that they are for good cause.

In State v. Alvarez, 189 Neb. 281, 202 N. W. 2d 604 (1972), this court established several principles relevant to the application of section 29-1207, R. R. S. 1943. First, we held that the “primary burden is upon the State, that is, the prosecutor and the court, to bring the accused person to trial within the time provided by law. * * * If a defendant is not brought to trial within the time provided for and as determined by valid statutory standards, he is, in the absence of an express waiver or a waiver as provided by statute, entitled to his absolute discharge from the offense alleged * * Second, we specifically rejected the contention that the failure of the defendant to object at the time the trial court enters an order setting the trial at a date after the 6-month period constitutes a waiver of his rights under the statute. See, also, Barker v. Wingo, 407 U. S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972). Third, we held that the State has the burden to prove by a substantial preponderance of the evidence that one or more of the excluded periods of time under subsection (4) of section 29-1207, R. R. S. 1943, is applicable if the defendant is not tried within 6 months of the commencement of the criminal action. Finally, we set down specific guidelines for future cases, stating that when the trial court sets a date for trial outside the 6-month period, the court shall: “(1) Advise the defendant of his statutory right to a speedy trial and the effect of his consent to a period of delay, and * * * (2) Ascertain of record whether the defendant does or does not waive his right to a speedy trial and consent to the trial date set."

The dispute in the present case is whether the time period after March 16, 1977, when defendant appeared in court after his absence from the jurisdiction, should be included in the 6-month computation. Until March 16th, 5 months, 19 days had elapsed from the filing of the complaint, excluding the time the defendant was absent from the jurisdiction, which was from February 14th to March 16th, and also excluding the time the defendant was granted a continuance to secure counsel, from August 26th to September 2nd. Therefore, if the time after March 16th is not excluded, the State had 11 days after March 16th to try the defendant, which it did not do. If the time after March 16th is excluded, it is apparent that the defendant was tried within 6 months under section 29-1207, R. R. S. 1943.

The trial court concluded that the period after March 16th should be excluded under subsection (4) (b) of section 29-1207, R. R. S. 1943, which provides for excluding the “period of delay resulting from a continuance granted at the request or with the consent of the defendant or his counsel.” The trial court apparently viewed the delay after March 16th as the result of an “informal” motion for a continuance on the part of the defendant, and then expanded on this view by stating that it believed that the defendant’s counsel had consented to the setting of the trial date on May 13th. The evidence presented at the hearing on defendant’s motion to dismiss, however, does not support the conclusion of the trial court. Other than the continuance granted at the outset of the case to permit the defendant time to secure counsel, no continuance was ever granted by the trial court. There is no evidence that the defendant, either formally or informally, moved for a continuance on or after March 16th, nor was there any evidence that the defendant or his counsel consented to the setting of the trial date on May 13th. In fact, the witnesses at the hearing were not even certain when the trial date of May 13th was actually set, and there was no evidence concerning the circumstances of the May 13th trial date.

We conclude that the exclusion of the time period after March 16th cannot be justified by reliance on subsection (4) (b) of section 29-1207, R. R. S. 1943. The evidence simply does not show that there was a continuance granted on or after that date at the request or with the consent of the defendant or his counsel, or that the defendant or his counsel consented to the trial date of May 13th. Since the burden is upon the State to show by a substantial preponderance of the evidence that one or more of the excluded periods of time under subsection (4) of section 29-1207, R. R. S. 1943, was applicable, and since it failed to meet this burden with respect to subsection (4) (b), the trial court’s exclusion of the time period after March 16th under subsection (4) (b) cannot be sustained.

We also find no other provision in subsection (4) of section 29-1207, R. R. S. 1943, which would warrant exclusion of the time period after March 16th from the 6-month computation. Subsection (4) (f) excludes periods of delay not specifically enumerated, but only if the trial court finds that they are for “good cause.” In State v. Alvarez, supra, this court held that if a trial court relies on subsection (4) (f) in excluding a period of delay from the 6-month computation, a general finding of “good cause” will not suffice, and the trial court must make specific findings as to the good cause or causes which resulted in extensions of time. In the present case the trial court did not purport to rely on subsection (4) (f) in excluding the time period after March 16th, but specifically and solely relied on subsection (4) (b). In any event, the evidence presented by the State does not support a finding that the delay from March 16th until May 13th was the result of good cause. There is no evidence either, that the State could not have tried the defendant within 11 days after March 16th, in which case the defendant unquestionably would have been tried within 6 months of the filing of the complaint, or, that May 13th was the earliest trial date available after March 16th. For the same reasons, the delay after March 16th until May 13th can not be excluded under subsection (4) (d) of section 29-1207, R. R. S. 1943, which excludes from the computation the period of delay resulting from the absence or unavailability of the defendant.

In summary, the State failed to meet its burden of proof in this case, and the delay after March 16th can not be attributed to the defendant. As the trial judge himself admitted: “* * * I am not going to make any bones about it. I think that the court is at fault for not following the proper procedures * *

We conclude that the defendant is entitled to discharge from the offense charged because the State failed to meet its burden of showing that he was brought to trial within 6 months of the filing of the complaint. See, § 29-1208, R. R. S. 1943; State v. Alvarez, supra. We emphasize however, that a defendant whose trial is set at the end of the 6-month period, but who fails to appear for that trial, is not necessarily entitled to an immediate trial when he subsequently appears in court. It would appear in many cases that a delay after the defendant’s reappearance might be justified for good cause, such as a congested docket in the trial court, or scheduling difficulties on the part of the trial judge or the prosecutor. In such a case, where the trial date must be set outside the 6-month period, the trial court should comply with the mandate of State v. Alvarez, supra, and advise the defendant of his right to a speedy trial and ascertain whether the defendant wishes to waive that right; or otherwise set forth in the record the cause for the delay. We also note that the prosecution may move for a continuance under subsection (4) (c) of section 29-1207, R. R. S. 1943, in such circumstances. If such simple procedures are followed, problems like those in the present case can be avoided in the future.

We reverse the judgment and remand the cause with directions to vacate the defendant’s conviction and discharge him from the offense charged.

Reversed and remanded.