State v. Mortensen

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CONCLUSION
For the reasons discussed, we find no merit in any of
Ely’s assignments of error. However, we conclude that the
district court incorrectly granted Ely credit for time served
against his life sentence. We therefore modify the credit for
time served by applying it to the sentence for use of a deadly
weapon. In all other respects, we affirm the judgment of the
district court.
Affirmed as modified.
State of Nebraska, appellee, v.
Randy L. Mortensen, appellant.
___ N.W.2d ___
Filed January 10, 2014. No. S-12-454.
1. Judgments: Speedy Trial: Appeal and Error. As a general rule, a trial court’s
determination as to whether charges should be dismissed on speedy trial grounds
is a factual question which will be affirmed on appeal unless clearly erroneous.
2. Statutes: Appeal and Error. The meaning and interpretation of a statute are
questions of law. An appellate court independently reviews questions of law
decided by a lower court.
3. Speedy Trial. 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) (Cum. Supp. 2012).
4. ____. Under the speedy trial statutes, it is axiomatic that an accused cannot and
should not be permitted to take advantage of a delay where the accused is respon-
sible for the delay by either action or inaction.
5. Speedy Trial: Waiver. The statutory right to a speedy trial is not unlimited and
can be waived.
6. Statutes: Appeal and Error. An appellate court will not read into a statute a
meaning that is not there.
7. Speedy Trial: Waiver. A defendant waives his or her statutory right to a 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
6-month period.
8. 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) (Cum. Supp. 2012) 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.
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Petition for further review from the Court of Appeals,
Sievers, Pirtle, and Riedmann, Judges, on appeal thereto from
the District Court for Butler County, Mary C. Gilbride, Judge.
Judgment of Court of Appeals affirmed.
Robert J. Bierbower for appellant.
Jon Bruning, Attorney General, and Stacy M. Foust for
appellee.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
Wright, J.
NATURE OF CASE
In April 2012, Randy L. Mortensen filed his second motion
to discharge based upon his statutory right to a speedy trial.
The district court overruled the motion and found that the State
had 28 days remaining to bring Mortensen to trial. Mortensen
appealed, and the Nebraska Court of Appeals affirmed via a
memorandum opinion. See State v. Mortensen, No. A-12-454,
2013 WL 2106665 (Neb. App. Apr. 23, 2013) (selected for
posting to court Web site).
The State petitioned for further review, arguing that addi-
tional days should be excluded from the speedy trial calcula-
tion because Mortensen’s motion was frivolous and prejudiced
the State. We granted the State’s petition for further review
and, upon consideration, hold that Mortensen has waived his
statutory right to a speedy trial.
SCOPE OF REVIEW
[1] As a general rule, a trial court’s determination as to
whether charges should be dismissed on speedy trial grounds
is a factual question which will be affirmed on appeal unless
clearly erroneous. State v. Brooks, 285 Neb. 640, 828 N.W.2d
496 (2013).
[2] The meaning and interpretation of a statute are questions
of law. We independently review questions of law decided by
a lower court. Pinnacle Enters. v. City of Papillion, 286 Neb.
322, 836 N.W.2d 588 (2013).
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FACTS
On October 27, 2009, Mortensen was charged by infor-
mation with assault while being incarcerated and of being
a habitual criminal. The current appeal involves his second
attempt to obtain absolute discharge based on statutory speedy
trial grounds.
On October 25, 2010, Mortensen filed his first motion to
discharge under the speedy trial statutes. The district court
overruled the motion, and Mortensen appealed. In State v.
Mortensen, 19 Neb. Ct. App. 220, 809 N.W.2d 793 (2011), the
Court of Appeals affirmed the order denying absolute discharge
and calculated that there were 112 days remaining in which to
bring Mortensen to trial in the district court.
Mortensen sought further review of the Court of Appeals’
decision, which this court denied on December 14, 2011. On
January 11, 2012, the Court of Appeals issued its mandate,
and on January 17, the district court entered judgment on the
mandate. The district court scheduled Mortensen’s trial for
April 11.
On April 10, 2012, Mortensen filed a second motion to dis-
charge based on the alleged violation of his statutory right to a
speedy trial. The parties appeared before the district court for a
hearing on April 11, the date originally scheduled for trial. The
matter was taken under advisement, and on May 14, the court
overruled Mortensen’s motion. It concluded:
This matter was set for trial well within the 112
remaining days after the entry of judgment on the man-
date. [Mortensen] sets forth no basis for a determination
that the speedy trial time as calculated by both this court
and the Court of Appeals has expired. The motion is with-
out basis. There remain 28 days to commence trial.
Mortensen timely appealed. He argued that the speedy trial
clock should have resumed running on the date this court
denied his petition for further review, not the date the district
court entered judgment on the Court of Appeals’ mandate.
Accordingly, Mortensen based all of his speedy trial calcula-
tions upon the date of December 14, 2011, not January 17,
2012. He calculated that with an April 11 trial date, the State
would have brought him to trial after 118 days and that it had
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only 112 days to do so under the Court of Appeals’ previ-
ous decision.
The Court of Appeals rejected Mortensen’s argument as
“clearly without merit and contrary to Nebraska law.” State
v. Mortensen, No. A-12-454, 2013 WL 2106665 at *2 (Neb.
App. Apr. 23, 2013) (selected for posting to court Web site).
It determined that the speedy trial clock began running again
when the district court took action upon the Court of Appeals’
mandate and that, consequently, the State still had 28 days
to bring Mortensen to trial at the time Mortensen filed his
second motion to discharge. The Court of Appeals held that
the district court properly overruled Mortensen’s motion
to discharge.
On appeal, the State asked the Court of Appeals to exclude
from the speedy trial clock the delay caused by Mortensen’s
allegedly frivolous motion to discharge. It argued that
Mortensen’s repeated, frivolous motions to discharge prej-
udiced the State and constituted good cause to exclude
additional time from the statutory speedy trial clock under
Neb. Rev. Stat. § 29-1207(4)(f) (Cum. Supp. 2012). The
Court of Appeals concluded that the State should have raised
this argument in a cross-appeal and declined to consider
whether additional days should be excluded from the speedy
trial clock.
The State moved for further review, claiming that the Court
of Appeals’ decision promoted abuse of the statutory speedy
trial system by defendants. It argued that the Court of Appeals’
opinion would “allow defendants to file repeated motions to
discharge on frivolous speedy trial claims and, after appeal, be
placed in potentially better positions than they were before. .
. . The State is prejudiced, while defendants like Mortensen
continue to play games with the speedy trial clock.” Brief for
appellee in support of petition for further review at 5-6. We
granted the State’s petition for further review.
ASSIGNMENT OF ERROR
On further review, the State assigns that the Court of Appeals
erred in its calculation of the days remaining on the speedy
trial clock for the State to bring Mortensen to trial.
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ANALYSIS
Background
[3] This case involves Mortensen’s statutory right to a
speedy trial, which is separate from his constitutional right to
a speedy trial. See State v. Brooks, 285 Neb. 640, 828 N.W.2d
496 (2013). The statutory right to a speedy trial is set forth
in § 29-1207 and Neb. Rev. Stat. § 29-1208 (Cum. Supp.
2012). Brooks, supra. Under § 29-1207(1), “[e]very 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
up 1 day, and then add any time excluded under § 29-1207(4).
Brooks, supra.
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.
§ 29-1208.
Purpose of Speedy Trial Statutes
The Legislature’s stated purpose for enacting the speedy
trial statutes was “[t]o effectuate the right of the accused to a
speedy trial and the interest of the public in prompt disposition
of criminal cases . . . .” Neb. Rev. Stat. § 29-1205 (Reissue
2008). Thus, one important purpose of the speedy trial statutes
is “protection of an accused from a criminal charge pending for
an undue length of time.” State v. Lafler, 225 Neb. 362, 367,
405 N.W.2d 576, 580 (1987), abrogated on other grounds, State
v. Oldfield, 236 Neb. 433, 461 N.W.2d 554 (1990). In addition
to facilitating the rights of defendants, speedy trial statutes also
serve public interests. See State v. Sumstine, 239 Neb. 707, 478
N.W.2d 240 (1991). By enactment of the statutes in question,
the Legislature has recognized the social desirability of bring-
ing the accused to trial at an early date. See State v. Alvarez,
189 Neb. 281, 202 N.W.2d 604 (1972).
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Abuse of Speedy Trial Statutes
But as shown by the current appeal, our speedy trial statutes
have been abused. The statutory right to a speedy trial has
been used in some cases not to obtain relief from protracted
criminal proceedings, but to hamper the State’s ability to bring
a defendant to trial in an efficient and timely manner. The
circumstances surrounding Mortensen’s motions to discharge
illustrate this abuse.
Mortensen filed his first motion to discharge on October
25, 2010. At that time, his trial was set for October 26. As a
result of the motion, the trial was continued and the parties
argued the motion to discharge. The district court ruled that
Mortensen’s trial scheduled for October 26 would have been
within the statutory 6-month period, and the Court of Appeals
affirmed. See State v. Mortensen, 19 Neb. Ct. App. 220, 809
N.W.2d 793 (2011).
Mortensen filed a second motion to discharge on April 10,
2012, the day before trial was scheduled to begin. Instead of
holding a trial on April 11, the court was required to continue
the trial for a hearing on the motion to discharge. Again,
the district court determined that the trial would have been
within the statutory 6-month period if it had been held on
April 11, as originally scheduled. The Court of Appeals again
affirmed.
Both of Mortensen’s motions to discharge had the significant
result of postponing trial dates that he claimed were untimely
when in fact both trial dates were set within the required 6
months. As a result of these motions, Mortensen has postponed
his trial date for over 3 years from his first trial date.
[4] Under the speedy trial statutes, it is axiomatic that an
accused cannot and should not be permitted to take advantage
of a delay “where the accused is responsible for the delay
by either action or inaction.” State v. Tucker, 259 Neb. 225,
232, 609 N.W.2d 306, 312 (2000). See, also, State v. Turner,
252 Neb. 620, 564 N.W.2d 231 (1997); Lafler, supra; State
v. Craig, 15 Neb. Ct. App. 836, 739 N.W.2d 206 (2007). Yet,
defendants have used motions to discharge to delay trial for
their benefit. Mortensen’s case exemplifies the manner in
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which defendants awaiting trial have manipulated the speedy
trial system to delay trial and run out the speedy trial clock.
Mortensen was charged by information in October 2009, but
because of his motions to discharge, trial has been postponed
for over 3 years since his first trial date—well beyond the
statutory 6-month period.
We agree with the State’s assertion that Mortensen has
abused his statutory right to a speedy trial but has to date
faced no repercussions for doing so. That has now changed
with the recent amendment to § 29-1207. See 2010 Neb. Laws,
L.B. 712, § 15.
Waiver by Filing Unsuccessful Motion
to Discharge That Extended Trial
Beyond 6-Month P eriod
[5] The statutory right to a speedy trial is not unlimited and
can be waived. See, e.g., State v. Andersen, 232 Neb. 187,
440 N.W.2d 203 (1989). Under certain circumstances, waiver
is prescribed by statute. See, § 29-1207(4)(b); Neb. Rev. Stat.
§ 29-1209 (Reissue 2008).
In State v. Williams, 277 Neb. 133, 761 N.W.2d 514 (2009)
(Wright, J., concurring; Heavican, C.J., and Connolly, J., join),
we pointed out the problems with the statutory speedy trial
claims being asserted by defendants and the potential for
abuse. In that case, the defendant’s trial had been delayed for
several years as a result of continuances granted at his request
or with his consent, leaving only 34 days to bring him to trial.
From those facts, we observed that “time keeps following the
State, and the accused hopes the State will slip and fall victim
to the 6-month trial clock.” Id. at 148, 761 N.W.2d at 527. As
a solution to such abuse, we recommended that the speedy trial
statutes be amended to provide for a waiver of the statutory
right to a speedy trial.
In response to the concerns expressed in Williams, supra,
the Legislature amended § 29-1207(4)(b) to provide that a
defend­nt’s request to continue trial beyond the statutory
a
6-month period is deemed to be a waiver of the defendant’s
statutory right to a speedy trial. See L.B. 712, § 15. As
amended, § 29-1207(4)(b) provides in relevant part that “[a]
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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.”
The 2010 amendments also added language to § 29-1207(4)(b)
that establishes an affirmative duty on the part of a defendant
to end an indefinite continuance granted at his or her request.
See L.B. 712, § 15. The amendments were operative July 15,
2010—several months before Mortensen filed his first motion
to discharge. See id. But these amendments were not consid-
ered in Mortensen’s first appeal.
[6] Section 29-1207(4)(b), as amended, provides for a per-
manent waiver of the statutory right to a speedy trial. There
is no language in the statute that indicates an intent to limit
the scope of the waiver provided therein, and “an appellate
court will not ‘read into a statute a meaning that is not there.’”
See Holdsworth v. Greenwood Farmers Co-op, 286 Neb. 49,
58, 835 N.W.2d 30, 37 (2013), quoting Blakely v. Lancaster
County, 284 Neb. 659, 825 N.W.2d 149 (2012). As such, the
language of the amendments to § 29-1207(4)(b) indicates
that the Legislature intended for the amendments to provide
for a permanent waiver of a defendant’s statutory right to a
speedy trial.
Thus, reading § 29-1207(4)(b) as a whole, if a defendant
requests a continuance that moves a trial date which has been
set within the statutory 6-month period to a date that is outside
the 6-month period, that request constitutes a permanent waiver
of the statutory speedy trial right. The question is whether
Mortensen’s motion for discharge is a motion for continuance
as described in the amendments. The amendments provided
for a waiver of the right to a speedy trial when a continuance
extends the trial date beyond the statutory 6-month period.
Obviously, if a defendant’s motion is sustained, the action is
concluded and the defendant is discharged. But what is the
effect of a motion for discharge that extends the trial date if the
motion is overruled?
A motion to discharge is a request for a continuance, because
it requires the court to dispose of the motion before trial can be
commenced. As explained below, when a motion to discharge
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is filed, trial cannot be held and must be continued in order
for the court to consider and rule upon the motion. The motion
functions as a request for a continuance, because the motion
must be resolved by completion of the appeal process before
the trial may be commenced. A motion which necessitates an
adjournment is equivalent to an application for a continuance.
17 C.J.S. Continuances § 94 (2011).
Implicit within a motion to discharge is a request to con-
tinue the proceeding. There is no other procedure for the
consideration of the motion. Under § 29-1209, the failure of
the defendant to move for discharge prior to trial or entry of
a plea of guilty or nolo contendere shall constitute a waiver
of the right to a speedy trial. But even though raised in a
pretrial motion, the denial of discharge is a final and appeal-
able order. See State v. Gibbs, 253 Neb. 241, 570 N.W.2d
326 (1997). The statutory right to a speedy trial would be
“significantly undermined if appellate review of nonfrivolous
speedy trial claims were postponed until after conviction and
sentence.” Id. at 245, 570 N.W.2d at 330. Consequently, if a
defendant files a notice of appeal from a denial of the speedy
trial claim, the trial court is divested of jurisdiction until the
issue has been resolved by the appellate court and the man-
date has been entered. See State v. Abram, 284 Neb. 55, 815
N.W.2d 897 (2012). Because an order denying discharge is
appealable and a notice of appeal filed from the denial of
discharge divests the trial court of jurisdiction, the motion
for discharge has the immediate effect of continuing the pro-
ceedings. The procedures in our appellate jurisdiction require
the matter to be continued pending resolution of a motion to
discharge. Therefore, implicit within the motion for discharge
is a request for a continuance until the issue has been com-
pletely resolved.
Where a motion to discharge cannot be finally resolved
without postponing trial, the motion serves no purpose unless
it acts as a request for a continuance. Trial cannot proceed and
must be continued. Other courts have charged to a defend­
ant the delay resulting from his or her motion to discharge,
describing the delay as “a reasonable continuance to permit a
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ruling of the motion.” See Russell v. State, 624 S.W.2d 176,
179 (Mo. App. 1981).
This is precisely what has occurred in the instant case.
Because of the manner in which Mortensen filed each of his
motions to discharge, it was necessary to continue trial beyond
the statutory 6-month period in order for the court to rule on
the motion. Mortensen’s first motion to discharge continued
the trial scheduled for October 26, 2010. He filed that motion
to discharge on October 25, and as a result, the October 26
trial date was used for a hearing on the motion to discharge
instead of for trial. Mortensen engaged in identical tactics
when filing his second motion to discharge. He waited until
April 10, 2012, to file a second motion to discharge. On April
11, the parties argued the motion to discharge instead of start-
ing trial. Because Mortensen filed each motion to discharge
the day before the scheduled trial, it was impossible to resolve
the issue within the statutory 6-month period and the trial was
continued. Furthermore, because Mortensen’s motions neces-
sitated the continuance of trial scheduled within the 6-month
requirement, we conclude that his motions were requests by
Mortensen for a continuance.
Any delay resulting from Mortensen’s motions to dis-
charge must be construed as a period of delay resulting
from a continuance granted at the request of a defendant
under § 27-1207(4)(b). The language of the amendments to
§ 27-1207(4)(b) does not specify the reasons for which a con-
tinuance must be granted in order to result in a waiver of the
statutory right to a speedy trial. As amended, § 27-1207(4)(b)
provides that the continuance must be granted at the request
of a defendant or his or her counsel and extend the trial date
beyond the statutory 6-month period. In the absence of any
language to the contrary, this broad language encompasses a
continuance necessitated by a defendant’s motion to discharge
where the continuance has the effect of moving trial beyond
the statutory 6-month period.
If, for purposes of argument, we assume, without deciding,
that § 27-1207(4)(b) is ambiguous whether the waiver was meant
to apply to a motion to discharge, the legislative history of the
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2010 amendments clearly demonstrates that § 27-1207(4)(b)
was amended specifically to address these types of delays. The
language of waiver now found in § 27-1207(4)(b) was intro-
duced by L.B. 1046, which was later amended into L.B. 712.
See, L.B. 1046, Judiciary Committee, 101st Leg., 2d Sess. 3
(Jan. 21, 2010); Committee Statement, L.B. 712, A.M. 2288,
101st Leg., 2d Sess. 3 (January 20, 2010). At a committee hear-
ing, the proponents of L.B. 1046 explained that the language of
waiver was being proposed as a direct response to the problems
identified in State v. Williams, 277 Neb. 133, 761 N.W.2d 514
(2009) (Wright, J., concurring; Heavican, C.J., and Connolly,
J., join). See Judiciary Committee Hearing, L.B. 1046, 101st
Leg., 2d Sess. 15-16 (Feb. 19, 2010). As stated in the hear-
ing, the problems identified in Williams, supra, and intended
to be addressed by the amendments included not only delays
caused by traditional continuances, but also delays result-
ing from the filing of motions to discharge. See Judiciary
Committee Hearing, supra. In light of this legislative history,
§ 27-1207(4)(b) must be interpreted as providing for a waiver
of a defendant’s speedy trial claim when a continuance neces-
sitated by the defend­nt’s motion to discharge moves trial
a
beyond the statutory 6-month period.
In the instant case, both of the motions to discharge resulted
in the continuance of trial from a date within the statutory
6-month period to a date outside the 6-month period, as cal-
culated at the time Mortensen filed each motion. The practi-
cal effect of Mortensen’s first motion to discharge was to
move his trial beyond the 112 days remaining on the speedy
trial clock when Mortensen filed the motion. Mortensen’s
second motion to discharge similarly required the contin­
uance of a timely trial to a date outside the statutory 6-month
period. There were 28 days left on the speedy trial clock
when Mortensen filed his second motion to discharge. Over
1 year later, the continuance necessitated by this motion is
still in effect pending resolution of this appeal. These are pre-
cisely the type of continuances that § 29-1207 was amended
to address.
[7] A defendant waives his or her statutory right to a speedy
trial “when the period of delay resulting from a continuance
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granted at the request of the defendant or his or her counsel
extends the trial date beyond the statutory six-month period.”
§ 29-1207(4)(b). Mortensen’s motions to discharge operated
as requests for continuances, prevented what would have been
timely trials from taking place, and delayed trial beyond the
statutory 6-month period, as calculated on the date each motion
was filed. If Mortensen’s motions to discharge had identi-
fied actual violations of his statutory right to a speedy trial,
he would have been discharged, making the delay irrelevant.
But his motions to discharge did not succeed in obtaining
discharge. Therefore, the filing of those motions is deemed to
be a waiver of Mortensen’s statutory speedy trial right under
§ 29-1207(4)(b).
Extending the waiver of § 29-1207(4)(b) to cover requests
for continuances implicit in motions to discharge furthers the
purposes of the speedy trial statutes. A primary purpose of
the statutes is to promote a speedy trial, not to delay it. See,
e.g., 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 filing of a motion to discharge
that identifies an actual violation of the statutory right to a
speedy trial serves that purpose by ensuring that defendants
are brought to trial within 6 months. If a defendant’s statutory
right to a speedy trial has actually been violated, a motion
to discharge will provide relief in the form of a discharge. If
successful, a motion to discharge does not delay trial, it com-
pletely avoids trial. But where motions to discharge are filed
so as to continue the trial date beyond the statutory 6-month
period without identifying a violation of the statutory right to
a speedy trial, they have the effect of frustrating the purposes
of the speedy trial statutes by continually delaying trial and,
hence, are deemed to be a waiver of such rights.
R esolution
[8] We hold that a defendant’s motion to discharge based on
statutory speedy trial grounds will be deemed to be a waiver
of 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 out-
side the statutory 6-month period, as calculated on the date the
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motion to discharge was filed, (2) discharge is denied, and (3)
that denial is affirmed on appeal.
Mortensen waived his statutory right to a speedy trial under
§ 29-1207(4)(b) by filing unsuccessful motions to discharge
that necessitated continuing trial beyond the statutory 6-month
period. Thus, we affirm the Court of Appeals’ decision affirm-
ing the judgment of the district court that overruled Mortensen’s
motion for discharge.
In the past, when affirming a district court’s denial of dis-
charge in similar cases, we have calculated the number of days
remaining for the State to bring the defendant to trial once the
district court reacquired jurisdiction of the case. See, e.g., State
v. Williams, 277 Neb. 133, 761 N.W.2d 514 (2009). For this
reason, the State asked the Court of Appeals to exclude addi-
tional days from the speedy trial clock. The Court of Appeals
declined to consider this request, asserting that the State was
required to submit such a request on cross-appeal. We note
that in a criminal case, the State is not permitted to cross-
appeal. See State v. Halsey, 232 Neb. 658, 441 N.W.2d 877
(1989). But in any event, an exact calculation of days remain-
ing on the speedy trial clock is no longer required. Because
Mortensen has waived his statutory right to a speedy trial under
§ 29-1207(4)(b), we are not required to calculate the days
remaining to bring him to trial under § 29-1207. Once the dis-
trict court reacquires jurisdiction over the cause, it is directed
to set the matter for trial.
CONCLUSION
For the foregoing reasons, we affirm the decision of the
Court of Appeals affirming the denial of Mortensen’s motion
to discharge. The district court is directed to set a date to
bring Mortensen to trial once it reacquires jurisdiction over
the cause.
Affirmed.