State v. Nelson

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
02/10/2023 09:06 AM CST
- 464 -
Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
STATE V. NELSON
Cite as 313 Neb. 464State of Nebraska, appellee, v.
Brent L. Nelson, appellant.
___ N.W.2d ___
Filed February 10, 2023. No. S-22-082.
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. Statutory interpretation is a question of law.
3. ____. The application of a statute to undisputed facts is a question
of law.
4. Judgments: Appeal and Error. On questions of law, an appellate court
is obligated to reach a conclusion independent of the determination
reached by the court below.
5. Speedy Trial: Statutes. The statutory right to a speedy trial is set forth
in Neb. Rev. Stat. §§ 29-1207 and 29-1208 (Reissue 2016).
6. Speedy Trial. To calculate the time for speedy trial purposes, a court
must exclude the day the information was filed, count forward 6 months,
back up 1 day, and then add any time excluded under Neb. Rev. Stat.
§ 29-1207(4) (Reissue 2016) to determine the last day the defendant can
be tried.
7. Speedy Trial: Proof. The State bears the burden to show, by a prepon-
derance of the evidence, the applicability of one or more of the excluded
time periods under Neb. Rev. Stat. § 29-1207(4) (Reissue 2016).
8. Speedy Trial: Pretrial Procedure. As a matter of law, Neb. Rev.
Stat. § 29-1207(4)(a) (Reissue 2016) dictates the exclusion of all time
between the filing of a defendant’s pretrial motion and the final dis-
position of such motion, regardless of the reason for the delay of
its disposition.
9. Speedy Trial: Appeal and Error. Factual determinations pertaining
to the exceptions listed in Neb. Rev. Stat. § 29-1207(4)(a) through (f)
- 465 -
Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
STATE V. NELSON
Cite as 313 Neb. 464(Reissue 2016) must be supported by specific findings, which appellate
courts review for clear error.
10. Speedy Trial. The proper interpretation of Neb. Rev. Stat. § 29-1207(4)
(Reissue 2016) and its application to the undisputed historical facts of a
case are questions of law.
11. Judgments: Appeal and Error. A correct result will not be set aside
merely because the lower court applied the wrong reasoning in reaching
that result.
12. Speedy Trial: Pretrial Procedure. The plain terms of Neb. Rev. Stat.
§ 29-1207(4)(a) (Reissue 2016) dictate the exclusion of all time between
the filing of a defendant’s pretrial motion and the final disposition of
such motion, regardless of the promptness or reasonableness of the
delay of disposition.
13. ____: ____. The period excludable under Neb. Rev. Stat. § 29-2017(4)(a)
(Reissue 2016) for a defendant’s pretrial motion commences on the day
immediately after the filing of a defendant’s pretrial motion and ends
at final disposition, which occurs on the date the motion is granted
or denied.
14. Speedy Trial: Legislature: Intent: Words and Phrases. If
the Legislature had intended to limit the scope of Neb. Rev. Stat.
§ 29-1207(4)(a) (Reissue 2016), it would have inserted limiting phrases
such as “reasonable period of delay” in § 29-1207(4)(e) and “good
cause” in § 29-1207(4)(f).
15. Speedy Trial: Pretrial Procedure. There is no exception to the mandate
of Neb. Rev. Stat. § 29-1207(4)(a) (Reissue 2016) for delays in hearing
a defendant’s pretrial motions due to continuances granted to the State.
16. Speedy Trial. The power of the trial court to rule on a motion for dis-
charge is not bound in any way by its prior interlocutory rulings.
17. Judgments: Final Orders. A court’s judgment is not final until no
further action of the court is required to dispose of the cause pending,
and when the cause is retained for further action, it is interlocutory and
nonappealable.
18. Judgments: Judges. The proposition that a successor judge should
respect a decision made by a predecessor judge on the same case is a
matter of policy rather than a limit on the successor judge’s power.
19. Judgments: Judges: Pretrial Procedure. The important consideration
when dealing with a trial court ruling that conflicts with an earlier inter-
locutory ruling by a judge in the same case is that the ultimate ruling be
legally correct.
20. Judgments: Final Orders. A trial court is not precluded from changing
its interlocutory rulings so as to arrive at the correct legal outcome in a
later ruling or final judgment.
- 466 -
Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
STATE V. NELSON
Cite as 313 Neb. 46421. Speedy Trial: Appeal and Error. Specific findings of those facts nec-
essary to facilitate appellate review of the trial court’s ultimate speedy
trial calculation for a motion to discharge are required, and findings
of fact concerning irrelevant interlocutory rulings do not facilitate
such review.
22. Speedy Trial: Time: Appeal and Error. A trial court must make spe-
cific findings of fact in order to facilitate appellate review of all deter-
minations of excludable periods under Neb. Rev. Stat. § 29-1207(4)
(Reissue 2016), including the date and nature of the proceedings, cir-
cumstances, or rulings which initiated and concluded each excludable
period; the number of days composing each excludable period; and the
number of days remaining in which the defendant may be brought to
trial after taking into consideration all excludable periods.
23. Speedy Trial: Judgments: Appeal and Error. A trial court must
make specific findings of the excludable periods under Neb. Rev. Stat.
§ 29-1207(4)(a) (Reissue 2016) because a trial court’s determination of
whether charges should be dismissed on speedy trial grounds is a factual
question, and an appellate court cannot review whether the trial court’s
determination was erroneous without specific findings of fact.
Appeal from the District Court for Adams County: Terri S.
Harder, Judge. Affirmed.
T. Charles James, of Langvardt, Valle & James, P.C., L.L.O.,
for appellant.
Douglas J. Peterson, Attorney General, and Stacy M. Foust
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Freudenberg, J.
INTRODUCTION
In a criminal case, the district court denied the defend­
ant’s motion for absolute discharge upon determining that a
42-day continuance granted at the request of the State was
excluded from the speedy trial calculation under Neb. Rev.
Stat. § 29-1207 (Reissue 2016). The defendant argues that
the district court was bound by its prior oral ruling that the
- 467 -
Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
STATE V. NELSON
Cite as 313 Neb. 464speedy trial clock would run during the State’s continuance,
unless it considered and specifically addressed the prior order
in its order denying the motion for discharge. We affirm.
BACKGROUND
The State filed a criminal complaint against Brent L. Nelson
in the county court for Adams County, charging him with his
fourth offense of driving while under the influence of alcohol.
A preliminary hearing was held, and the matter was bound over
to the district court. On December 23, 2020, the State filed
an information against Nelson, charging him with the same
offense. The district court scheduled a jury trial to begin on
March 22, 2021.
On March 9, 2021, Nelson moved to suppress evidence law
enforcement obtained during the traffic stop, which had led to
Nelson’s arrest. The district court scheduled a hearing on the
motion to suppress for April 15.
On April 15, 2021, the State filed a motion to continue the
hearing on the motion to suppress. In support of its motion,
the State asserted that it had requested the preparation of a
transcript of the preliminary hearing held in the county court.
However, the State was informed on April 12 that the pre-
liminary hearing transcript had mistakenly been delivered to
Nelson’s counsel. The State needed to prepare a second tran-
script for itself because Nelson’s counsel refused to return the
original transcript. The State claimed it required the transcript
of police officer Cale Neelly’s testimony at the preliminary
hearing to prepare for Neelly’s testimony at the suppres-
sion hearing.
The district court held a hearing on the State’s motion to
continue. No evidence was presented at the hearing. The court
granted the State’s motion but concluded: “Speedy trial will
start running as of today, 4/15/21, until May 27, ’21. Then
that’s the date of the hearing. Speedy trial will then stop
running on that date until the Court issues an Order on that
Motion to Suppress.” The court then asked the prosecutor to
- 468 -
Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
STATE V. NELSON
Cite as 313 Neb. 464journalize the hearing. The journal entry, entered on April 21,
2021, did not reflect the court’s statements about speedy trial.
At the suppression hearing, held on May 27, 2021, the State
called Neelly to testify. The State did not explicitly reference
Neelly’s preliminary hearing testimony, but Nelson’s counsel
referred to the transcript during the hearing.
The district court overruled Nelson’s motion to suppress in a
written order on September 2, 2021. The court scheduled a jury
trial, without seeking input from the parties, for November 8.
On November 8, Nelson filed a motion for absolute discharge
on the ground that he had been denied his right to a speedy
trial. The district court held a hearing on Nelson’s motion for
discharge before a new judge.
The parties stipulated that the original judge had counted the
April 15 to May 27, 2021, continuance against the State for the
speedy trial calculation. The court then received into evidence
certified copies of the complete record and the preliminary
hearing testimony. The State also offered an affidavit sworn by
the prosecutor. The court reserved ruling on Nelson’s objec-
tion to the affidavit. The affidavit stated the State’s grounds
for good cause for the continuance, namely that it could not
prepare for the April 15 hearing despite reasonable diligence
because of the county court’s mistaken delivery of the pre-
liminary hearing transcript to defense counsel. Paragraph 17 of
the prosecutor’s affidavit admitted that the district court, at the
time of the original hearing on the relevant motion to continue,
“found that the State had not presented evidence to establish
good cause for said continuance, and therefore the period of
delay from April 15, 2021 to May 27, 2021 would be included
in speedy trial calculations.”
Without objection, the State called the clerk magistrate to
testify at the motion to discharge hearing. His testimony was
consistent with the State’s claims that it had requested a copy
of the preliminary hearing transcript over a month before the
April 15, 2021, hearing; that the county court had mistak-
enly delivered the copy to defense counsel instead of to the
- 469 -
Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
STATE V. NELSON
Cite as 313 Neb. 464State; and that the State did not receive a copy of the transcript
until April 20.
In a January 31, 2022, order, the district court received
the prosecutor’s affidavit into evidence and denied Nelson’s
motion for discharge. In doing so, the court found that the
hearing on the motion to discharge was the proper time to
receive evidence regarding whether time should be excluded
from the speedy trial calculations. The court ruled that the
State had met its burden to show that the 42-day continu-
ance period should be excluded from the speedy trial calcu-
lation under § 29-1207(4)(c)(i) because the State exercised
due diligence to obtain the transcript but could not due to
circumstances beyond its control. It also found the 42 days
associated with the continuance excluded as an exceptional
circumstance pursuant to § 29-1207(4)(c)(ii). The court con-
cluded that the continuance period was also excludable under
§ 29-1207(4)(f) based upon the same reasoning. The court
adopted the State’s speedy trial calculation, found that the
State had until March 10 to bring Nelson to trial, and sched-
uled trial for February 22.
Nelson appeals.
ASSIGNMENTS OF ERROR
Nelson assigns that the district court erred by (1) failing to
consider and make specific findings on the record addressing
the court’s previous ruling on speedy trial, (2) allowing the
State to present evidence regarding its motion for continuance
in light of the parties’ stipulation concerning the court’s pre-
vious ruling, (3) receiving the prosecutor’s affidavit and the
preliminary hearing transcript over Nelson’s objections, (4) set-
ting a trial date outside the speedy trial time without Nelson’s
consent, and (5) adopting the State’s speedy trial calculation
and excluding the 42-day continuance period.
STANDARD OF REVIEW
[1] Generally, a trial court’s determination as to whether
charges should be dismissed on speedy trial grounds is a
- 470 -
Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
STATE V. NELSON
Cite as 313 Neb. 464factual question which will be affirmed on appeal unless
clearly erroneous. 1
[2] Statutory interpretation is a question of law. 2
[3] The application of a statute to undisputed facts is a ques-
tion of law. 3
[4] On questions of law, an appellate court is obligated to
reach a conclusion independent of the determination reached
by the court below. 4
ANALYSIS
[5-7] This case involves Nelson’s statutory right to a speedy
trial, which is separate from his constitutional right to a
speedy trial. 5 The statutory right to a speedy trial is set forth
in § 29-1207 and Neb. Rev. Stat. § 29-1208 (Reissue 2016).
Section 29-1208 provides that a criminal defendant is entitled
to absolute discharge if he or she is not brought to trial before
the running of time as provided by § 29-1207. Section 29-1207
provides that a defendant shall be brought to trial within 6
months starting from the date the indictment is returned or
the information filed, excluding periods of delay falling into
any of the exceptions listed in § 29-1207(4)(a) through (f).
To calculate the time for speedy trial purposes, 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) to determine the last day the defend­
ant can be tried. 6 The State bears the burden to show, by a
1
State v. Webb, 311 Neb. 694, 974 N.W.2d 317 (2022).
2
In re Estate of Anderson, 311 Neb. 758, 974 N.W.2d 847 (2022).
3
Maung Than Htike Aung v. Holder, 339 Fed. Appx. 839 (9th Cir. 2009).
See, State v. Shannon, 293 Neb. 303, 876 N.W.2d 907 (2016); Holloway
v. State, 293 Neb. 12, 875 N.W.2d 435 (2016); Reinke Mfg. Co. v. Hayes,
256 Neb. 442, 590 N.W.2d 380 (1999).
4
In re Estate of Adelung, 312 Neb. 647, 980 N.W.2d 415 (2022).
5
See State v. Mortensen, 287 Neb. 158, 841 N.W.2d 393 (2014).
6
State v. Williams, 277 Neb. 133, 761 N.W.2d 514 (2009).
- 471 -
Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
STATE V. NELSON
Cite as 313 Neb. 464preponderance of the evidence, the applicability of one or more
of the excluded time periods under § 29-1207(4). 7
[8] Nelson argues that the speedy trial clock ran during the
State’s continuance because the State’s grounds for seeking
the continuance were insufficient to satisfy § 29-1207(4)(c)(i)
or (ii) or § 29-1207(4)(f). Nelson also argues that the district
court was required to consider and specifically address its
prior oral ruling concerning speedy trial before it could deter-
mine whether the State’s continuance was excluded from the
speedy trial calculation under § 29-1207(4). We hold that the
district court did not err in finding that the period of the State’s
continuance of the hearing on Nelson’s motion to suppress was
excluded because, as a matter of law, § 29-1207(4)(a) dictates
the exclusion of all time between the filing of a defendant’s
pretrial motion and the final disposition of such motion,
regardless of the reason for the delay of its disposition. We
also hold that because a trial court’s interlocutory ruling has
no preclusive effect on its final judgment on the same issue,
the district court had no obligation to consider or specifically
address its prior oral ruling when it denied Nelson’s motion
for discharge.
[9-11] Factual determinations pertaining to the exceptions
listed in § 29-1207(4)(a) through (f) must be supported by
specific findings, which we review for clear error. 8 However,
the proper interpretation of § 29-1207(4) and its application
to the undisputed historical facts of a case are questions of
law. 9 Here, the timeline is uncontroverted. Therefore, whether
the subject delay is excluded under § 29-1207(4)(a) is a ques-
tion of law that we determine de novo. Although the district
court did not discuss § 29-1207(4)(a), we have an obligation
to come to a conclusion independent of the district court
7
Webb, supra note 1.
8
See, Webb, supra note 1; State v. Coomes, 309 Neb. 749, 962 N.W.2d 510(2021); Williams, supra note 6.
9
See In re Estate of Anderson, supra note 2. See, also, Holder, supra note
3; Shannon, supra note 3; Holloway, supra note 3; Hayes, supra note 3.
- 472 -
Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
STATE V. NELSON
Cite as 313 Neb. 464concerning its applicability. 10 A correct result will not be set
aside merely because the lower court applied the wrong rea-
soning in reaching that result. 11
[12,13] Section 29-1207(4)(a) excludes, in relevant part,
“the time from filing until final disposition of pretrial motions
of the defendant, including motions to suppress evidence.” We
have consistently held that the plain terms of § 29-1207(4)(a)
dictate the exclusion of all time between the filing of a defend­
ant’s pretrial motion and the final disposition of such motion,
regardless of the promptness or reasonableness of the delay of
disposition. 12 The excludable period “commences on the day
immediately after the filing of a defendant’s pretrial motion”
and ends at final disposition, which “occurs on the date the
motion is granted or denied.” 13
[14] As we noted in State v. Lafler, 14 “conspicuously absent
from § 29-1207(4)(a) is any limitation, restriction, or qualifica-
tion of time” that may be charged to the defendant as a result
of the defendant’s motions. We reasoned in Lafler that if the
Legislature had intended to limit the scope of § 29-1207(4)(a),
it would have inserted limiting phrases such as “reasonable
period of delay” in § 29-1207(4)(e) and “good cause” in
§ 29-1207(4)(f). 15 We thus declined “to rewrite the provisions
of § 29-1207(4)(a) to include and require a reasonable time
or good cause for delay in disposition of the pretrial matters
described or characterized in § 29-1207(4)(a).” 16
10
In re Estate of Adelung, supra note 4.
11
State v. Kolbjornsen, 295 Neb. 231, 888 N.W.2d 153 (2016).
12
See, Webb, supra note 1; Williams, supra note 6; State v. Washington, 269
Neb. 728, 695 N.W.2d 438 (2005); State v. Covey, 267 Neb. 210, 673
N.W.2d 208 (2004).
13
Williams, supra note 6, 277 Neb. at 141, 761 N.W.2d at 522 (internal
quotation marks omitted).
14
State v. Lafler, 225 Neb. 362, 371, 405 N.W.2d 576, 583 (1987), abrogated
on other grounds, State v. Oldfield, 236 Neb. 433, 461 N.W.2d 554 (1990).
15
Lafler, supra note 14.
16
Id. at 373, 405 N.W.2d at 583-84.
- 473 -
Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
STATE V. NELSON
Cite as 313 Neb. 464We accordingly held in State v. Turner 17 that the period of a
continuance of the hearing of the defendant’s motions, granted
at the request of the State, was automatically excluded under
§ 29-1207(4)(a). The defendant in Turner had filed several
motions, including a request for all evidence samples from
the prosecution. Before any hearing or disposition on the
defendant’s motions, the State moved for a continuance on the
grounds that the prosecution was waiting on DNA analysis by
the Federal Bureau of Investigation on some of the samples.
The trial court granted the continuance and found it satisfied
§ 29-1207(4)(c)(i), because the prosecution was legitimately
pursuing evidence and, through no fault of its own, had not yet
obtained the analysis of the samples. We agreed on appeal, but
noted that more fundamentally, because the State’s continu-
ance “occurred during the time that [the defendant’s] pretrial
motions were still pending,” the period of the State’s continu-
ance was already excluded from the speedy trial calculation
under § 29-1207(4)(a). 18
Despite our repeated recognition that the plain language of
§ 29-1207(4)(a) does not limit excludability thereunder based
on the reason for the delay, Nelson argues that whenever
the record affirmatively demonstrates the period of delay in
reaching a final disposition of a defendant’s pretrial motion
was not attributable to the defendant, the period of delay falls
outside of § 29-1207(4)(a). Nelson relies on a statement from
Williams that “[p]ursuant to § 29-1207(4)(a), it is presumed
that a delay in hearing defense pretrial motions is attribut-
able to the defendant unless the record affirmatively indicates
otherwise.” 19 But we have never applied this presumption to
determine whether § 29-1207(4)(a) excluded a period of a con-
tinuance of a hearing of a defendant’s pretrial motion granted
to the State. In Turner, this statement was made in relation
17
State v. Turner, 252 Neb. 620, 564 N.W.2d 231 (1997).
18
Id. at 631, 564 N.W.2d at 238.
19
Williams, supra note 6, 277 Neb. at 141, 761 N.W.2d at 522.
- 474 -
Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
STATE V. NELSON
Cite as 313 Neb. 464to determining whether delays in hearing the defendant’s pre-
trial motions were due to judicial neglect. 20 We did not apply it
later in the opinion when holding that the State’s continuance
was automatically excluded under § 29-1207(4)(a). 21 Nelson
does not claim that any delay in his case was due to judicial
neglect or that the reasoning behind this judicial neglect excep-
tion applies to continuances granted to the State.
The parties direct us to two decisions by the Nebraska Court
of Appeals, State v. Carrera 22 and State v. Fioramonti, 23 which
might suggest an exception to § 29-1207(4)(a) for continu-
ances granted to the State. In Carrera, because there was no
evidence why the State needed a continuance of the hearing
for defendant’s motion to suppress, the Court of Appeals gave
the defendant the benefit of assuming that the continuance
fell outside of § 29-1207(4)(a). 24 The Court of Appeals incor-
rectly supported its assumption by citing to the presumption
from Turner discussed above. 25 Moreover, whether the State’s
continuance should be included was not actually at issue in
the case, because the speedy trial clock had not run regard-
less of whether the State’s continuance was included in the
calculation. 26 In Fioramonti, the Court of Appeals held that
the State’s continuance from a hearing on a defendant’s pre-
trial motion was excluded under § 29-1207(4)(b), but did not
discuss whether the State’s continuance was already excluded
by § 29-1207(4)(a). In sum, neither of these decisions actually
held that there was an exception to § 29-1207(4)(a) for con-
tinuances granted to the State. To the extent that they suggest
such an exception, they are disapproved.
20
Turner, supra note 17.
21
Id.22
State v. Carrera, 25 Neb. App. 650, 911 N.W.2d 849 (2018).
23
State v. Fioramonti, 22 Neb. App. 52, 847 N.W.2d 95 (2014).
24
Carrera, supra note 22.
25
Id. See Turner, supra note 17.
26
See Carrera, supra note 22.
- 475 -
Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
STATE V. NELSON
Cite as 313 Neb. 464[15] We decline Nelson’s invitation to create a general
exception to the mandate of § 29-1207(4)(a) for delays in
hearing a defendant’s pretrial motions due to continuances
granted to the State. Accordingly, § 29-1207(4)(a) excludes
the entire period from March 9, 2021, when Nelson filed his
motion to suppress, to September 2, 2021, when the district
court overruled that motion. It is not disputed that the State’s
42-day continuance from April 15 to May 27 occurred during
this 177-day period. Therefore, we hold as a matter of law that
§ 29-1207(4)(a) automatically excluded the State’s continu-
ance from the speedy trial calculation. Nelson did not claim
the district court abused its discretion by granting the State’s
continuance in the first place, and we give no opinion on the
standard by which a trial court may exercise its discretion to
grant or deny a motion to continue a hearing on a defendant’s
pretrial motion.
[16] That the district court allegedly failed to “consider
[and] make specific findings” 27 about the original judge’s oral
ruling has no bearing on our determination that as a matter
of law, the entirety of the delay in deciding Nelson’s motion
to suppress was excludable under § 29-1207(4)(a). Indeed,
Nelson is not clear how these alleged errors affect the ultimate
question of whether the State’s continuance should be excluded
from the speedy trial calculation. He appears to suggest that the
district court was required to either adopt the original judge’s
conclusion regardless of its legal correctness or explicitly
address the prior ruling before being permitted to deviate from
it. We disagree. The power of the trial court to rule on a motion
for discharge is not bound in any way by its prior interlocu-
tory rulings. 28
[17] A court’s judgment is not final until “no further
action of the court is required to dispose of the cause pend-
ing,” and “when the cause is retained for further action, it
27
See brief for appellant at 20.
28
See Wicker v. Vogel, 246 Neb. 601, 521 N.W.2d 907 (1994).
- 476 -
Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
STATE V. NELSON
Cite as 313 Neb. 464is interlocutory and nonappealable.” 29 In Wicker v. Vogel, 30 we
held that a successor judge was not precluded from sustain-
ing a second motion for new trial simply because a different
judge had overruled the first motion for new trial, which set
forth the same grounds. We held that claim preclusion did
not apply because the trial court’s order overruling the first
motion was not a final judgment. It was, instead, interlocu-
tory. Therefore, the first order “could have no effect on the
second motion.” 31
Here, the original judge’s oral ruling had no preclusive
effect. It was interlocutory, not final, because further action by
the court was required to dispose of the case. Therefore, the
original judge’s ruling did not preclude the district court from
later deciding that the State’s continuance should be excluded
from the speedy trial calculation.
[18-20] While there is some authority for the proposition that
a successor judge should respect a decision made by a prede-
cessor judge on the same case, 32 doing so is a matter of policy
rather than a limit on the successor judge’s power. 33 As we have
explained, “[t]he important consideration is that the ultimate
ruling be legally correct.” 34 A trial court is not precluded from
changing its interlocutory rulings so as to arrive at the correct
legal outcome in a later ruling or final judgment.
[21] Nelson argues that even if a trial court is not bound by
its prior rulings, our decision in State v. Williams 35 requires
29
Evert v. Srb, 308 Neb. 895, 899, 957 N.W.2d 475, 479 (2021).
30
Wicker, supra note 28.
31
Id. at 604, 521 N.W.2d at 909.
32
See, Wicker, supra note 28 (citing United States v. Wheeler, 256 F.2d 745(3d Cir. 1958); TCF Film Corporation v. Gourley, 240 F.2d 711 (3d Cir.
1957); and Carmichaels Arbors Associates v. U.S., 789 F. Supp. 683 (W.D.
Pa. 1992)).
33
Wicker, supra note 28.
34
Id. at 604, 521 N.W.2d at 910.
35
Williams, supra note 6, 277 Neb. at 143, 761 N.W.2d at 524.
- 477 -
Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
STATE V. NELSON
Cite as 313 Neb. 464“specific findings” about the prior ruling when ruling on a
motion for discharge. However, Williams only requires specific
findings of those facts necessary to facilitate appellate review
of the trial court’s ultimate speedy trial calculation for a motion
for discharge, and findings of fact concerning irrelevant inter-
locutory rulings do not facilitate such review.
[22,23] In Williams, we said that a trial court must make
specific findings “in order to facilitate appellate review of all
determinations of excludable periods under § 29-1207(4).” 36
Such findings shall include:
the date and nature of the proceedings, circumstances, or
rulings which initiated and concluded each excludable
period; the number of days composing each excludable
period; and the number of days remaining in which the
defendant may be brought to trial after taking into consid-
eration all excludable periods. 37
We require these findings because, without specific findings
of the periods of delay included or excluded from the speedy
trial calculation, we cannot conduct a proper review. 38 A trial
court’s determination of whether charges should be dismissed
on speedy trial grounds is a factual question, which will be
affirmed on appeal unless clearly erroneous, and we cannot
review whether the trial court’s determination was erroneous
without specific findings of fact. 39 Thus, Williams only requires
a trial court to make specific findings of those facts necessary
for an appellate court to review whether the trial court’s speedy
trial calculation was clearly erroneous.
The district court complied with Williams in its order deny-
ing Nelson’s motion for discharge. It noted that on March 9,
2021, Nelson filed a motion to suppress, and that on April
15, the court granted the State’s motion to continue a hearing
36
Id.
37
Id. at 143-44, 761 N.W.2d at 524.
38
State v. Lintz, 298 Neb. 103, 902 N.W.2d 683 (2017).
39
Id.- 478 -
Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
STATE V. NELSON
Cite as 313 Neb. 464on the motion to suppress until May 27. This gives the dates
and natures of the proceedings, circumstances, and rulings
relevant to the court’s decision that the State’s continuance
was excludable from the speedy trial calculation. Without any
preclusive effect, the district court’s prior interlocutory ruling
was irrelevant to whether the State’s continuance should be
excluded from the speedy trial calculation. The district court
did not err because it was under no obligation to consider
or address an irrelevant matter in its order denying Nelson’s
motion for discharge.
The parties do not dispute that if the State’s continuance
is excluded, then the 6-month speedy trial period had not
run when Nelson filed his motion for discharge. The State
filed an information against Nelson on December 23, 2020,
meaning the original last day for the State to bring Nelson
to trial was June 22, 2021. Adding the 177 days to June 22
resulted in a trial deadline of December 16. Nelson filed his
motion for discharge on November 8, before this deadline
had passed. Thus, the district court properly denied Nelson’s
motion for discharge.
Because the State’s continuance was automatically excluded
under § 29-1207(4)(a) regardless of good cause, we find it
unnecessary to address Nelson’s assignment that the district
court erred by allowing the State to present evidence that its
motion for continuance was for good cause.
CONCLUSION
For the foregoing reasons, we affirm the district court’s
order denying Nelson’s motion for absolute discharge.
Affirmed.