State v. Space

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/07/2022 01:04 AM CDT
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
STATE V. SPACE
Cite as 312 Neb. 456State of Nebraska, appellant,
v. Tracy L. Space, appellee.
___ N.W.2d ___
Filed September 16, 2022. No. S-21-837.
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, for which an appellate court has an obligation to reach
an independent conclusion irrespective of the decision made by the
court below.
3. Speedy Trial. Under Nebraska’s speedy trial statutes, criminal defend­
ants must be brought to trial by a 6-month deadline, but certain periods
of delay are excluded and thus can extend the deadline.
4. ____. The primary burden is on the State to bring an accused person to
trial within the time provided by law.
5. ____. If a defendant is not brought to trial by the 6-month speedy trial
deadline, as extended by any excluded periods, he or she is entitled to
absolute discharge from the offense charged and for any other offense
required by law to be joined with that offense.
6. Speedy Trial: Proof. When a motion for absolute discharge is filed, the
State bears the burden to show, by the greater weight of the evidence,
that one or more of the excluded time periods under Neb. Rev. Stat.
§ 29-1207(4) (Reissue 2016) are applicable.
7. Speedy Trial. To calculate the time for speedy trial purposes, a court
must exclude the day the complaint 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.
8. Statutes. Statutory interpretation begins with the text, and the text is to
be given its plain and ordinary meaning. A court will not read meaning
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Nebraska Supreme Court Advance Sheets
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STATE V. SPACE
Cite as 312 Neb. 456into a statute that is not warranted by the legislative language or read
anything plain, direct, or unambiguous out of a statute.
9. Statutes: Intent. When interpreting a statute, a court must give effect,
if possible, to all the several parts of a statute and no sentence, clause,
or word should be rejected as meaningless or superfluous if it can
be avoided.
10. Words and Phrases. A legal term of art is a word or phrase having
a specific, precise meaning in a given specialty apart from its general
meaning in ordinary contexts.
11. Statutes: Words and Phrases. When legal terms of art are used in stat-
utes, they are to be construed according to their term of art meaning.
12. Speedy Trial: Words and Phrases. The term “continuance,” as used
in Neb. Rev. Stat. § 29-1207(4)(b) (Reissue 2016), refers to the cir-
cumstance where a court proceeding set for one date is postponed to a
future date.
13. Speedy Trial. The text of Neb. Rev. Stat. § 29-1207(4)(b) (Reissue
2016) plainly requires that a “continuance” must be granted at the
request or with the consent of the defendant or his or her counsel, before
the resulting period of delay is excludable.
14. Criminal Law: Appeal and Error. Under the invited error doctrine, a
defendant in a criminal case may not take advantage of an alleged error
which the defendant invited the trial court to commit.
15. Criminal Law: Speedy Trial: Waiver. A criminal defendant’s failure
to demand a trial within the 6-month statutory speedy trial period, or to
object to a trial date set beyond such period, does not constitute a waiver
of his or her speedy trial rights.
Appeal from the District Court for Buffalo County: Ryan C.
Carson, Judge. Exception overruled.
Shawn R. Eatherton, Buffalo County Attorney, and Kari R.
Fisk for appellant.
Lydia Davis, Buffalo County Public Defender, for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Stacy, J.
During a scheduling hearing in a felony criminal case, the
district court proposed a trial date and asked defense counsel,
“does that work?” to which counsel replied, “Yes, thank you.”
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STATE V. SPACE
Cite as 312 Neb. 456The court then scheduled trial for that date. No one mentioned
speedy trial during the scheduling hearing, but it is undisputed
that the proposed trial date was more than 6 months after the
date the information was filed.
Shortly before the scheduled trial date, the defendant moved
for absolute discharge, asserting she had not been brought to
trial before the running of the 6-month speedy trial period
under Neb. Rev. Stat. § 29-1207 (Reissue 2016). The district
court granted absolute discharge, and the State filed this excep-
tion proceeding.
The State’s primary argument is that by agreeing to an initial
trial date that was outside the 6-month statutory speedy trial
period, the defendant consented to an excludable “period of
delay resulting from a continuance granted” within the mean-
ing of § 29-1207(4)(b). Alternatively, the State argues the
defendant “invit[ed] the Court to commit error in scheduling” 1
and should not have been allowed to rely on such error to
obtain absolute discharge. Finding no merit to the State’s argu-
ments, we overrule the exception.
BACKGROUND
In a two-count information filed on March 5, 2021, Tracy
L. Space was charged with aggravated driving under the influ-
ence, third offense (a Class IIIA felony), and refusal to submit
to a preliminary breath test (a Class V misdemeanor). On
March 9, Space filed a motion for discovery, which the court
granted in an order entered the following day.
On March 25, 2021, the court entered a progression order
setting arraignment for May 24, and a “final plea hearing” for
July 22. The progression order stated that “[a]t the conclusion
of the final plea hearing . . . the Court will schedule trial.”
Before the scheduled arraignment on May 24, Space filed a
written waiver of arraignment and entered a plea of not guilty.
All parties appeared for the final plea hearing on July 22,
2021, during which the following exchange took place:
1
Brief for appellant at 8.
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STATE V. SPACE
Cite as 312 Neb. 456THE COURT: . . . We are set for final plea/pretrial.
[Defense counsel], what is the status?
[Defense counsel:] She is asking — she’s standing on
her not guilty plea, Your Honor.
THE COURT: September 20, 2021, for jury trial; does
that work?
[Defense counsel:] Yes. Thank you.
THE COURT: We’ll set the matter also for final status
hearing the Friday before, September 17th at 11:30 a.m.
Does that also work?
[Defense counsel:] Yes. Thank you.
THE COURT: Ms. Space, we’re going to set your
matter for jury trial on September 20, 2021, at 9 a.m.,
and also for a final status hearing the Friday before,
September 17th at 11:30 a.m. It’s important that you be
here on both times; do you agree to do that?
DEFENDANT: Yes, Your Honor.
THE COURT: [Defense counsel], I’ll ask that you
write those dates and times down for Ms. Space so she
doesn’t forget.
Ms. Space, you need to understand that today was the
deadline for discovery and also the deadline to [accept
any] plea offers that may be made by the State. Absent a
showing of good cause, the matter will proceed to trial at
your request; do you understand that?
DEFENDANT: Yes, Your Honor.
THE COURT: The Court will allow you to remain out
on your current bond, subject to all the terms and condi-
tions; do you understand?
DEFENDANT: Yes, Your Honor.
THE COURT: And do you have any questions for me?
DEFENDANT: No, Your Honor.
THE COURT: [Defense counsel], anything else?
[Defense counsel:] No. Thank you.
THE COURT: [Counsel for the State]?
[Counsel for the State:] No, Your Honor.
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STATE V. SPACE
Cite as 312 Neb. 456The issue of speedy trial was not raised or discussed when
the trial date was selected, nor at any other point during the
final plea hearing. After the hearing, the court entered an order,
styled as a journal entry, memorializing the dates set for the
final status hearing and trial.
On September 13, 2021, Space filed a motion for absolute
discharge, asserting a violation of both her statutory and consti-
tutional speedy trial rights. At the hearing on Space’s motion,
the court took judicial notice of the information, the progres-
sion order, Space’s written not guilty plea, the journal entry
memorializing the trial date, and the remainder of the court
file. The State offered a transcript of the July 22 hearing into
evidence, which the court received without objection.
The court then gave counsel an opportunity to present argu-
ment, beginning with the defense. Defense counsel argued that
Space was entitled to absolute discharge because the State
failed to bring her to trial within 6 months of the date the
information was filed and because she had not waived her right
to a speedy trial. Anticipating the State’s argument, defense
counsel urged:
[I]t is improper . . . to allege that some type of responsi-
bility was on the defendant because that’s simply not the
case. It’s not the defendant’s burden to notify the Court
of the speedy trial date, and quite frankly, it’s not the
Court’s burden either. According to the law, the duty is
on the county attorney, it’s on the State, to bring a person
to trial, again, within six months of the filing of the trial
information.
. . . I would remind the Court that at no time in this
case did Ms. Space ask for a continuance. At the final
plea hearing she simply stood on her not guilty plea at
that time. I would submit to the Court that that was not a
request for a continuance because, quite frankly, it wasn’t.
There was no evidence that she wasn’t immediately ready
for trial.
The State urged the court to overrule the motion for discharge,
reasoning that Space’s acceptance of the September 20, 2021,
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STATE V. SPACE
Cite as 312 Neb. 456trial date rendered the period between the July 22 hearing
and September 20 excludable under § 29-1207(4)(b). The
State argued:
A period of delay resulting from a continuance granted
at the request or with the consent of the defendant — or
of his or her counsel is what the State’s relying on here,
Your Honor.
....
So when the Court sets that date and the Court asks
[defense counsel] if that’s okay, I don’t know that it
would be appropriate for the State at that point to try to
overrule defense counsel in picking that particular date
because perhaps there were strategic reasons she would
want to have it on [September] 20th. . . .
Regardless of the subjective reasons for why [defense
counsel] said [September 20] would work, the objective
fact is that the period of time from July 22nd through
September 20th, in the State’s view, was a mutually
agreed upon trial date by and through defense counsel
. . . with the consent of defense counsel; and therefore,
under [§] 29-1207(4)(b), an excludable period up through
September 20th, meaning, then, that the motion for dis-
charge was filed in a time period that the speedy trial
clock had not run. So the motion for discharge in the
State’s view should be overruled, Judge.
The court took the matter under advisement.
Thereafter, the court entered an order granting Space’s
motion for absolute discharge. It found the 6-month speedy
trial period had run on September 6, 2021, and it expressly
rejected the State’s argument that by agreeing to the September
20 trial date, Space had consented to a “continuance” of trial.
It reasoned:
[T]he cases [the State] referenced all involved requests
for a continuance, as opposed to initial trial settings.
See State v. Curry, 18 Neb. App. 284, 790 N.W.2d 441(2010); State v. Turner, 252 Neb. 620, 564 N.W.2d 231(1997). Moreover, the Nebraska Supreme Court addressed
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312 Nebraska Reports
STATE V. SPACE
Cite as 312 Neb. 456this issue more specifically in State v. Alvarez, 189 Neb.
281, 291-92, 202 N.W.2d 604, 610 (1972), wherein it
concluded that the “failure by a defendant to demand a
trial within the time he is required to be brought to trial
. . . or to object at the time trial date is set does not con-
stitute a waiver of his rights[.]” The Court further noted
that “[p]revious holdings of this court that failure of the
accused to demand trial constitutes a waiver of the statu-
tory right are overruled[.]” Id. (citing Barker v. Wingo,
407 U.S. 514 (1972)). While the Court further noted that
the defendant’s inaction may be considered along with
other circumstances when determining whether “good
cause” exists, it cannot alone constitute good cause. Id.No additional evidence of “good cause” was offered in
this matter.
Presumably because the motion for absolute discharge was
granted on statutory grounds, the court’s order did not address
Space’s constitutional speedy trial claim. The State was granted
leave to docket this exception proceeding pursuant to Neb.
Rev. Stat. § 29-2315.01 (Cum. Supp. 2020). We moved the
matter to our docket on our own motion.
ASSIGNMENT OF ERROR
The State assigns that the district court erred in granting
Space’s motion for absolute discharge.
STANDARD OF REVIEW
[1,2] Generally, a trial court’s determination as to whether
charges should be dismissed on speedy trial grounds is a fac-
tual question which will be affirmed on appeal unless clearly
erroneous. 2 But statutory interpretation presents a question of
law, for which an appellate court has an obligation to reach an
independent conclusion irrespective of the decision made by
the court below. 3
2
State v. Abernathy, 310 Neb. 880, 969 N.W.2d 871 (2022).
3
State v. Chase, 310 Neb. 160, 964 N.W.2d 254 (2021).
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
STATE V. SPACE
Cite as 312 Neb. 456ANALYSIS
Statutory Speedy Trial Principles
[3] The sole question presented is whether the district court
erred in granting Space’s motion for absolute discharge on stat-
utory speedy trial grounds. The statutory right to a speedy trial
is set out in § 29-1207 and Neb. Rev. Stat. § 29-1208 (Reissue
2016). 4 Under these statutes, criminal defendants must be
brought to trial by a 6-month deadline, but certain periods
of delay are excluded and thus can extend the deadline. 5 The
excludable periods are set out in § 29-1207(4)(a) through (f).
In this case, the State’s primary argument rests on the exclud-
able time period set out in subsection (4)(b) of § 29-1207,
which provides:
(4) The following periods shall be excluded in comput-
ing the time for trial:
....
(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.
[4-6] We have long recognized that the primary burden is
on the State to bring an accused person to trial within the time
provided by law. 6 If a defendant is not brought to trial by the
6-month speedy trial deadline, as extended by any excluded
periods, he or she is entitled to absolute discharge from the
offense charged and for any other offense required by law to be
joined with that offense. 7 When a motion for absolute discharge
is filed, the State bears the burden to show, by the greater
4
See Abernathy, supra note 2.
5
Id.6
State v. Coomes, 309 Neb. 749, 962 N.W.2d 510 (2021).
7
Abernathy, supra note 2.
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STATE V. SPACE
Cite as 312 Neb. 456weight of the evidence, that one or more of the excluded time
periods under § 29-1207(4) are applicable. 8
[7] To calculate the time for speedy trial purposes, a court
must exclude the day the complaint 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 defendant can be
tried. 9 In this case, the information was filed March 5, 2021,
so absent any excludable time, the State had until September 5,
2021, to bring Space to trial.
The district court found there was 1 excludable day resulting
from Space’s motion for discovery, which was filed on March
9, 2021, and granted the next day. 10 Accounting for this single
excluded day, the court determined the statutory speedy trial
period expired on September 6. Space filed her motion for
absolute discharge approximately 1 week later, on September
13. After concluding the State had proved no excludable time
other than the 1 day related to Space’s discovery motion, the
district court granted absolute discharge.
In this exception proceeding, the State contends the dis-
trict court erred by not also excluding the time period from
July 22 to September 20, 2021. In doing so, it presents two
theories. First, the State suggests that when Space’s counsel
agreed to the September 20 trial date, the period of time lead-
ing up to that date became excludable under § 29-1207(4)(b)
as a “period of delay resulting from a continuance granted at
the request or with the consent of the defendant or his or her
counsel.” Alternatively, the State argues that by accepting the
September 20 trial date, Space “invit[ed] the Court to commit
error,” 11 and she should not have been allowed to rely on such
8
See Coomes, supra note 6.
9
State v. Gnanaprakasam, 310 Neb. 519, 967 N.W.2d 89 (2021).
10
See State v. Washington, 269 Neb. 728, 695 N.W.2d 438 (2005). See, also,
State v. Covey, 267 Neb. 210, 217, 673 N.W.2d 208, 213 (2004) (final
disposition under § 29-1207(4)(a) occurs on date motion is “‘granted or
denied’”).
11
Brief for appellant at 8.
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STATE V. SPACE
Cite as 312 Neb. 456error to support absolute discharge. We consider each argument
in turn, and ultimately, we reject them both.
Period of Delay Resulting From
Continuance Granted
The State argues that the period between July 22 and
September 20, 2021, was excludable under § 29-1207(4)(b)
as a “period of delay resulting from a continuance granted at
the request or with the consent of the defendant or his or her
counsel.” Space responds that § 29-1207(4)(b) does not apply
because this case did not involve the granting of a “continu-
ance,” but, rather, involved the initial setting of a trial date.
The parties’ competing positions present a question of statutory
interpretation regarding the meaning of the term “continuance”
as used in § 29-1207(4)(b).
Our cases have not expressly defined the term “continu-
ance,” presumably because the term is so commonplace in
legal vernacular that ordinarily there is no confusion sur-
rounding its meaning. As observed by the Nebraska Court of
Appeals, “[I]f it looks like a continuance and sounds like a
continuance, it is a continuance.” 12 But to analyze whether the
State is correct that the period of delay between July 22 and
September 20, 2021, resulted from a “continuance,” we must
first determine the meaning of that term.
According to the State, a “continuance” under § 29-1207(4)(b)
means “any delay or postponement of the 6-month statutory
period that has been requested by or consented to by the
defendant or defense counsel.” 13 We disagree with the State’s
interpretation.
[8,9] Statutory interpretation begins with the text, and the
text is to be given its plain and ordinary meaning. 14 A court
12
State v. Craven, 17 Neb. App. 127, 134, 757 N.W.2d 132, 137 (2008)
(rejecting contention that defense counsel’s request to “reset” hearing was
not request to “continue” hearing within meaning of § 29-1207(4)(b)).
13
Brief for appellant at 11 (emphasis omitted).
14
Nebraska Republican Party v. Shively, 311 Neb. 160, 971 N.W.2d 128(2022).
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STATE V. SPACE
Cite as 312 Neb. 456will not read meaning into a statute that is not warranted by
the legislative language or read anything plain, direct, or unam-
biguous out of a statute. 15 When interpreting a statute, a court
must give effect, if possible, to all the several parts of a statute
and no sentence, clause, or word should be rejected as mean-
ingless or superfluous if it can be avoided. 16
[10,11] These settled principles guide our analysis, but we
also observe that the term “continuance” is a legal term of art.
A legal term of art is a word or phrase having a specific, pre-
cise meaning in a given specialty apart from its general mean-
ing in ordinary contexts. 17 When legal terms of art are used
in statutes, they are to be construed according to their term of
art meaning. 18
[12] Black’s Law Dictionary defines “continuance” as the
“adjournment or postponement of a trial or other proceed-
ing to a future date.” 19 This definition is generally consistent
with our cases applying the continuance provision found in
the first sentence of § 29-1207(4)(b), 20 and such a definition
necessarily presumes that before there can be a “continuance”
of a proceeding, there must have been an initial setting. Stated
differently, “continuance,” as it is used in § 29-1207(4)(b),
15
See, id.; State v. Liming, 306 Neb. 475, 945 N.W.2d 882 (2020).
16
State v. Amaya, 305 Neb. 36, 938 N.W.2d 346 (2020).
17
Stone Land & Livestock Co. v. HBE, 309 Neb. 970, 962 N.W.2d 903(2021); State ex rel. Peterson v. Creative Comm. Promotions, 302 Neb.
606, 924 N.W.2d 664 (2019).
18
Id.19
Black’s Law Dictionary 400 (11th ed. 2019).
20
See, e.g., Coomes, supra note 6, 309 Neb. at 754, 962 N.W.2d at 516
(finding consent for continuance under § 29-1207(4)(b) when State orally
moved to continue matter for further status hearing “‘a month down the
road,’” and defense counsel said “‘Judge, that’s fine with me’”); Liming,
supra note 15 (finding continuance under § 29-1207(4)(b) when State
asked to continue court-ordered settlement conference to future date and
defendant agreed); State v. Lovvorn, 303 Neb. 844, 932 N.W.2d 64 (2019)
(finding continuance under § 29-1207(4)(b) when defendant moved to
continue pretrial hearing to future date).
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STATE V. SPACE
Cite as 312 Neb. 456does not broadly refer to the continuous passage of time.
Instead, we hold that “continuance” refers to the circumstance
where a court proceeding set for one date is postponed to a
future date.
We thus reject the State’s invitation to construe
§ 29-1207(4)(b) to apply to any period of delay granted with
the consent of the defendant or defense counsel. The State’s
construction would effectively read the phrase “continuance
granted” out of the statutory text and would allow the trial
court to stop the speedy trial clock between court appearances
simply by asking whether the next scheduled appearance is
agreeable to the defense.
[13] The text of § 29-1207(4)(b) plainly requires that a
“continuance” must be granted at the request or with the con-
sent of the defendant or his or her counsel, before the resulting
period of delay is excludable. No continuance was granted in
this case.
During the July 22, 2021, hearing, defense counsel con-
sented to setting the initial trial date on September 20, but prior
to that hearing, there was no scheduled trial date, so counsel
was not consenting to a continuance of trial or any other previ-
ously scheduled matter. Consequently, the time period between
the July 22 hearing and the September 20 trial date was not a
“period of delay resulting from a continuance granted at the
request or with the consent of the defendant or his or her coun-
sel” and was not excludable under § 29-1207(4)(b).
For the sake of completeness, we also reject any sug-
gestion that Space’s consent to the initial trial date impli-
cated the waiver provision contained in the last sentence of
§ 29-1207(4)(b). That sentence provides: “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.” 21 Interpreting
this language, we have said, “‘[I]f a defendant requests a
21
§ 29-1207(4)(b).
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Cite as 312 Neb. 456continuance 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.’” 22 But here, the waiver provi-
sion of § 29-1207(4)(b) was inapplicable, because Space con-
sented to an initial trial date set outside the 6-month period;
she did not request to continue a trial date that was originally
set within the statutory period. 23 There may be a compelling
policy argument that a defendant who accepts an initial trial
date outside the statutory 6-month period is acting in a way
that is fundamentally inconsistent with asserting his or her
statutory speedy trial rights and should therefore be under-
stood to have waived these rights. But expanding the statutory
waiver provision to address such a scenario is a policy matter
properly left to the Legislature.
Invited Error Doctrine
[14] The State’s alternative argument relies on the invited
error doctrine. Under that doctrine, “[a] defendant in a crimi-
nal case may not take advantage of an alleged error which the
defendant invited the trial court to commit.” 24
The State argues that Space invited the trial court to commit
error by agreeing to an initial trial date set outside the 6-month
speedy trial period. Space responds that she did not “invite”
the court to commit a scheduling error, generally noting it was
the judge who proposed the initial trial date, and further noting
22
State v. Riessland, 310 Neb. 262, 266-67, 965 N.W.2d 13, 16 (2021),
quoting State v. Mortensen, 287 Neb. 158, 841 N.W.2d 393 (2014).
23
See State v. Gill, 297 Neb. 852, 901 N.W.2d 679 (2017).
24
State v. Gutierrez, 260 Neb. 1008, 1013, 620 N.W.2d 738, 742 (2001).
See, also, State v. Brock, 245 Neb. 315, 318, 512 N.W.2d 389, 391 (1994)
(“[w]e decide this case on the basis that a defendant in a criminal case
may not take advantage of an alleged error which defendant invited the
court to commit”); State v. Zima, 237 Neb. 952, 956, 468 N.W.2d 377,
380 (1991) (“[i]t is a well-established principle of appellate practice that
a party cannot complain of error which he or she invited the trial court
to commit”).
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Cite as 312 Neb. 456the defendant has no duty to object on speedy trial grounds
when the court sets a trial date outside the 6-month speedy
trial period. 25
We find no merit to the State’s suggestion that the doctrine
of invited error should have either estopped Space from mov-
ing for absolute discharge or precluded the court from granting
absolute discharge. As an initial matter, we question whether
the invited error issue is properly before us, as it is not clear
the issue was expressly presented to and considered by the dis-
trict court. 26 But even assuming the issue of invited error was
properly preserved for appellate review, we are not persuaded
it has any application in this case.
First, it is debatable what role, if any, principles like the
invited error doctrine should play in our statutory speedy trial
analysis. The statutory scheme mandated by the Legislature
establishes when the speedy trial period begins to run, how
that period is to be computed, which periods of delay are
excludable, when a defendant is entitled to absolute discharge,
and when a defendant is deemed to have waived the statutory
right to speedy trial. This statutory scheme contains no provi-
sion permitting excludable time to arise as a result of invited
error, nor does it contain any provision forbidding a defend­
ant from moving for absolute discharge if that defendant
has “invited” a speedy trial violation. And because it is not
the proper role of the courts to modify the statutory speedy
trial scheme through judicial construction, 27 we question the
25
See State v. Alvarez, 189 Neb. 281, 202 N.W.2d 604 (1972).
26
See State v. Thomas, 303 Neb. 964, 982, 932 N.W.2d 713, 727 (2019)
(“[a]n appellate court will not consider an issue on appeal that was not
presented to or passed upon by the trial court”).
27
See State v. Kinstler, 207 Neb. 386, 299 N.W.2d 182 (1980) (explaining
that courts have no discretion to ignore provisions in §§ 29-1207 and
29-1208). See, also, State v. Williams, 277 Neb. 133, 139, 761 N.W.2d
514, 521 (2009) (recognizing courts will not “change the law because of
what the State perceives as abuse by criminal defendants” in speedy trial
context); Williams, supra note 27 (Wright, J., concurring) (fixing flaws in
statutory speedy trial scheme is proper task for Legislature, not courts).
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STATE V. SPACE
Cite as 312 Neb. 456propriety of using the invited error doctrine to circumvent
the absolute discharge and waiver provisions established by
the Legislature.
But this case does not require us to decide whether the
invited error doctrine could ever apply to prevent absolute
discharge under the speedy trial statutes. Because even if the
doctrine could be used as the State suggests, this record would
not support a finding that Space “invited” the court to commit
error in setting the trial date.
At the final plea hearing, Space’s counsel advised the court
that her client was standing on her plea of not guilty. The court
reasonably understood this to mean it would be necessary to
set a trial date. But there is nothing in our record suggesting
that Space requested a specific trial date, and certainly nothing
suggesting that she requested a trial date outside the statutory
6-month period. Nor can we infer such a request from the col-
loquy between the court and defense counsel regarding the
proposed trial date.
When the court asked “September 20, 2021, for jury trial;
does that work?” it was asking a scheduling question, not a
speedy trial question. And when defense counsel responded,
“Yes. Thank you,” she was answering that scheduling question.
Defense counsel was neither commenting on the speedy trial
calculation nor agreeing not to move for absolute discharge
once the 6-month period expired. At least for purposes of the
invited error doctrine, we find it significant that the issue of
speedy trial was not raised, expressly or impliedly, when the
court was proposing a trial date.
We pause here to observe that if the issue of speedy trial had
been expressly raised by either the State or the trial court dur-
ing the scheduling discussion, then the series of events which
culminated in absolute discharge could have been averted. A
discussion of speedy trial would presumably have alerted the
court to the fact that the trial date it was proposing was beyond
the 6-month deadline. The court could then have explored with
Space whether she was willing to freely and voluntarily waive
speedy trial until the September 20, 2021, date. If she was not,
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Cite as 312 Neb. 456the court could have set trial for a date within the 6-month
speedy trial period.
[15] Finally, we reject the State’s suggestion that defense
counsel “manipulate[d] the Court” 28 by agreeing to a trial date
that was plainly outside the speedy trial period. It is true that
both the prosecutor and the defense counsel owe a duty of
candor to the court, 29 and here, neither attorney advised the
court that the trial date it proposed was outside the 6-month
speedy trial period. But our cases do not require a defendant
to either demand a speedy trial or object to a trial date on
such grounds. 30 As we recognized long ago, a criminal defend­
ant’s failure to demand a trial within the 6-month statutory
speedy trial period, or to object to a trial date set beyond such
period, does not constitute a waiver of his or her speedy trial
rights. 31 And here, it is notable that the information necessary
to calculate the speedy trial deadline was equally available to
the court and the prosecutor. On this record, we cannot find
that defense counsel manipulated the court or misrepresented
any material fact regarding the speedy trial clock. Instead, we
question why the State did not alert the trial court to the fact
that the proposed trial date fell outside the 6-month speedy
trial period.
We have long recognized the State has the primary burden
of bringing an accused person to trial within the time pro-
vided by law. 32 And the Legislature has made it “the duty of
the county attorney to bring to the attention of the trial court”
any cases entitled to preferential treatment under the speedy
trial statutes. 33 It follows, then, that in addition to carefully
28
Brief for appellant at 8.
29
See Neb. Ct. R. of Prof. Cond. § 3-503.3 (rev. 2016) (providing that
lawyers shall not knowingly make false statements to tribunal or fail to
correct false statement of material fact or law made to tribunal by lawyer).
30
Alvarez, supra note 25.
31
Id.32
State v. Hernandez, 309 Neb. 299, 959 N.W.2d 769 (2021).
33
See Neb. Rev. Stat. § 29-1205 (Reissue 2016).
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Cite as 312 Neb. 456monitoring the speedy trial deadline, the prosecution should
promptly bring to the trial court’s attention any potential con-
cerns regarding the defendant’s right to a speedy trial.
On this record, the trial court correctly found there was just
1 day of excludable time under § 29-1207(4), and it correctly
concluded the State failed to bring Space to trial before the
running of the 6-month speedy trial period. Under § 29-1208,
Space was entitled to absolute discharge.
CONCLUSION
For the foregoing reasons, the exception is overruled.
Exception overruled.
Freudenberg, J., dissenting.
I respectfully dissent from the majority opinion based upon
the reasoning in my concurring opinions in State v. Coomes,
309 Neb. 749, 962 N.W.2d 510 (2021), and State v. Bixby, 311
Neb. 110, 971 N.W.2d 120 (2022). Through judicial construc-
tion, this court has improperly created a statutory speedy trial
scheme that is unsupported by the language of the relevant
statutes. The majority opinion in this matter further expands
the application of such improperly created scheme.
To fully understand the genesis of our judicially created
speedy trial scheme, we must recall situations represented by
cases like that decided by the U.S. Supreme Court in Barker
v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101(1972). In that matter, a Kentucky prosecuting authority did
not bring a murder suspect to trial for more than 5 years after
his arrest. The significant delay was due in large part to tacti-
cal continuances sought by the prosecutors. This and similar
situations refocused federal and state judiciaries upon the
meaningful enforcement of constitutional speedy trial rights.
It further spurred state legislatures to pass statutory speedy
trial legislation.
In 1971, Nebraska passed 1971 Neb. Laws, L.B. 436, cre-
ating the State’s first statutory speedy trial right which was
separate and distinct from existing constitutional speedy trial
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Cite as 312 Neb. 456provisions. Since that time, only a few revisions to the statu-
tory framework have occurred, none of which are material to
this matter or the basis of this dissent.
The Nebraska statutory speedy trial scheme is set forth in
Neb. Rev. Stat. §§ 29-1201 through 29-1209 (Reissue 2016
& Cum. Supp. 2020). The nuts and bolts of the speedy trial
scheme are found in § 29-1207, which states:
(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.
(2) Such six-month period shall commence to run from
the date the indictment is returned or the information
filed . . . .
(3) If a defendant is to be tried again following a mis-
trial, an order for a new trial, or an appeal or collateral
attack, such period shall commence to run from the date
of the mistrial, order granting a new trial, or the mandate
on remand.
Subsection (4) of § 29-1207 sets forth a number of events
which create periods of excludable time under the statutory
speedy trial calculations.
Section 29-1208 creates the remedy of “absolute discharge”
if a defendant is not brought to trial within the 6-month period
established in § 29-1207, as “extended by excluded periods.”
Section 29-1205 directs the trial courts to give preference to
criminal cases over civil cases in its trial settings and directs
county attorneys “to bring to the attention of the trial court
any cases falling within this subdivision, and he [or she] shall
generally advise the court of facts relevant in determining the
order of cases to be tried.”
The first time this court interpreted the new statutory speedy
trial scheme was in State v. Alvarez, 189 Neb. 281, 202 N.W.2d
604 (1972). In Alvarez, the defendant’s trial was set more
than 6 months after the applicable statutory starting point of
the speedy trial clock. The record was “completely silent as
to what, if anything, occurred between the court, defendant,
and his counsel at the time the order setting the trial date was
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Cite as 312 Neb. 456entered.” Id. at 285, 202 N.W.2d at 607. The defendant moved
for absolute discharge pursuant to § 29-1208 after expiration
of the applicable 6-month period. A hearing was held, and
the court found that “‘good cause’” existed for the court’s
delayed trial setting. Alvarez, 189 Neb. at 286, 202 N.W.2d
at 607. Pursuant to the excludable periods established under
§ 29-1207(4), “good cause” could be the basis for “[o]ther
periods of delay not specifically enumerated” in that section.
The defendant in Alvarez ultimately appealed the trial court’s
ruling to this court, which upheld the trial court’s finding of
good cause in affirming the defendant’s conviction. In doing
so, this court took the opportunity to address several issues
relating to Nebraska’s recently passed speedy trial statutes.
This court established that “[t]he 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.” Id. at 291,
202 N.W.2d at 610. This court also placed the burden of proof
upon the prosecution to prove the existence of one or more of
excludable periods of time provided for by § 29-1207(4). See
Alvarez, supra.However, this court then went well beyond what was
required for the establishment of necessary procedures to affect
the reasonable application of this new statutory speedy trial
scheme when discussing what does and does not constitute a
defendant’s waiver of the statutory right to absolute discharge.
Our discussion of waiver was unmoored from the relevant
statutory language and inconsistent with this court’s recognized
implementation of “waiver” principles applicable to other stat-
utorily created rights.
In the Alvarez opinion, this court identified one of the issues
to be addressed as follows: “When the trial court sets a trial
date which is more than 6 months after the filing of the infor-
mation, must the defendant immediately take exception thereto,
or may he wait for the 6-month period to elapse and then file
a motion for discharge?” Id. at 287-88, 202 N.W.2d at 608. In
answering, this court stated:
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Cite as 312 Neb. 456A failure by a defendant to demand a trial within the time
he [or she] is required to be brought to trial as provided
by sections 29-1205 to 29-1209, R. S. Supp., 1971, or to
object at the time trial date is set does not constitute a
waiver of [the defendant’s] rights under either the statutes
or the Constitution of Nebraska, but is a factor which,
while not constituting good cause by itself, may be con-
sidered along with other circumstances in determining
whether there was “good cause” for a delay . . . .
State v. Alvarez, 189 Neb. 281, 291-92, 202 N.W.2d 604, 610
(1972).
This court cited Barker v. Wingo, 407 U.S. 514, 92 S. Ct.
2182, 33 L. Ed. 2d 101 (1972), to support that position. Barker
placed “the primary burden on the courts and the prosecutors
to assure that cases are brought to trial.” 407 U.S. at 514.
Further, the Court in Barker pointed out that a defendant’s
constitutional speedy trial right is not viewed in the same man-
ner as other fundamental constitutional rights when weighing a
defend­ant’s inaction to enforce such right:
We reject, therefore, the rule that a defendant who fails
to demand a speedy trial forever waives [the] right.
This does not mean, however, that the defendant has no
responsibility to assert [the] right. We think the better rule
is that the defendant’s assertion of or failure to assert [the]
right to a speedy trial is one of the factors to be consid-
ered in an inquiry into the deprivation of the right.
407 U.S. at 528. Later, in discussing the “defendant’s responsi-
bility to assert [the] right,” the Barker Court stated:
The defendant’s assertion of [the] speedy trial right, then,
is entitled to strong evidentiary weight in determining
whether the defendant is being deprived of the right. We
emphasize that failure to assert the right will make it dif-
ficult for a defendant to prove that he [or she] was denied
a speedy trial.
407 U.S. at 531-32.
Even though the U.S. Supreme Court in Barker was clearly
reviewing a fundamental right under the Constitution rather
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Cite as 312 Neb. 456than a statutory right, it presented a more balanced approach
than that adopted by this court in Alvarez, supra, for a statuto-
rily created right. By describing in Alvarez the failure to assert
the speedy trial right as only a consideration of unspecified
weight in a good cause analysis, rather than a consideration of
strong evidentiary weight that will make it difficult to prove
the denial of the right, this court in Alvarez relieved a defend­
ant of a duty to assert the right to an extent that is incon­
sistent with Barker.
This approach to a defendant’s failure to assert the speedy
trial right is especially untenable in the context of a statutory
right to speedy trial. The 6-month statutory speedy trial right
is separate from the constitutional speedy trial right. State v.
Lee, 282 Neb. 652, 807 N.W.2d 96 (2011). Thus, for example,
outside the lens of ineffective assistance claims, the statutory
right to a speedy trial is not cognizable in a postconviction
proceeding, because the statutory speedy trial right is not a
constitutional right. Id. Thus, not only did we misunderstand
Barker, but our reliance on Barker was wholly misplaced. We
must construe the statutory speedy trial scheme the same way
we would any other set of statutory rights. Our holdings in this
case and its primogenitors are directly contrary to the plain
language of the speedy trial statutes and the traditional notions
of waiver that the Legislature would have considered when
drafting the statutory language.
We have long held that statutory rights are within the
classification of those rights that can be waived by silence
or acquiescence. State v. Meers, 257 Neb. 398, 598 N.W.2d
435 (1999); Sedlacek v. State, 147 Neb. 834, 25 N.W.2d 533(1946). Even when statutory rights relate in some way to con-
stitutional rights, silence or inaction can traditionally waive
those rights.
Thus, by failing to make a challenge for cause, a defendant
can waive objections to the competency of a juror. See Fillion
v. State, 5 Neb. 351 (1877). By remaining silent and failing
to object, a defendant can waive the introduction of evidence
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Cite as 312 Neb. 456unconstitutionally obtained and used against the defendant
at trial. See State v. Howard, 182 Neb. 411, 155 N.W.2d 339(1967). By failing to object, a defendant can waive prosecuto-
rial misconduct and the impartiality of a judge due to ex parte
communications. See, State v. Watt, 285 Neb. 647, 832 N.W.2d
459 (2013), disapproved on other grounds, State v. Vann, 306
Neb. 91, 944 N.W.2d 503 (2020); State v. Lotter, 255 Neb.
456, 586 N.W.2d 591 (1998), modified on denial of rehear-
ing 255 Neb. 889, 587 N.W.2d 673 (1999). Through silence,
a defendant can waive the unconstitutionality of a charging
statute. A defendant’s failure to object can waive the right to
confrontation. See State v. Nadeem, 284 Neb. 513, 822 N.W.2d
372 (2012). A defendant’s failure to object waives alleged vio-
lations of procedural due process. Id.In this context, we have generally said that the “‘[d]efense
may not remain silent in hopes that trial court will fall into
reversible error where possible error could have been passed
upon and cured, if need be, by a properly timed objection.’”
State v. Howard, 182 Neb. at 418, 155 N.W.2d at 344. In
State v. Leon-Simaj, 300 Neb. 317, 329, 913 N.W.2d 722, 731
(2018), we condemned the use of silence as a constitutional
sword of gamesmanship:
[W]e have rejected defendants’ use of constitutional
shields as swords of gamesmanship. Particularly, we have
found that defendants who remain silent in the face of
trial error impacting important constitutional rights, and
who gamble on a favorable outcome or raise the objection
only once the alleged error can no longer be remedied,
have waived the error.
We also explained in Leon-Simaj how silence can give the
“false impression of acquiescence [and thereby] lull the court
into taking actions that could not later be undone.” 300 Neb. at
329-30, 913 N.W.2d at 731 (internal quotation marks omitted).
This court’s position in State v. Alvarez, 189 Neb. 281, 202
N.W.22d 604 (1972), and its progeny promotes gamesmanship
by encouraging the defense to remain silent in the hopes that
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Cite as 312 Neb. 456the court will not realize any small miscalculation that could
lead to statutory absolute discharge—an error that cannot later
be undone. Indeed, the scheme this court shaped in Alvarez
places defense counsel in a difficult position when a court sets
an untimely trial date and asks for counsel’s input. Defense
counsel must choose between properly exercising a party’s
expected duty of candor to the court and doing what might be
most beneficial for the defendant by giving a false impression
of acquiescence in the hopes that the miscalculation will con-
tinue to go unnoticed.
In no way do I suggest that counsel for the defense in the
case at bar intentionally misled the court or acted inappropri-
ately under the scheme that this court has created. My point,
however, is that with the scheme this court has created, even
if defense counsel knows that the date set by the trial court is
beyond the statutory 6-month limit, there is no duty to advise
the court of the error so a timely trial date can be set. Instead,
the opposite is true; our statutory speedy trial scheme discour-
ages candor and arguably even makes raising a speedy trial
objection before the statutory period has run a potential subject
of ineffective assistance claims.
Such a system is contrary to what we expect from attorneys
appearing before our courts. Without justification, it encour-
ages gamesmanship that procedurally derails our criminal jus-
tice system from reaching the merits of the defendant’s guilt
or innocence.
The more reasonable approach would be the application
of the waiver principles that govern other statutorily created
rights, as previously set forth. When the court sets a trial date,
the defense’s failure to timely assert that the date falls outside
of the statutory 6-month period should constitute a waiver of
the statutory right to absolute discharge based on that trial date.
This still empowers criminal defendants to make demands for
trials within the 6-month time limit but does not turn criminal
proceedings into a game of “gotcha” by defendants not assert-
ing the statutory right to speedy trial until after the expiration
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Cite as 312 Neb. 456of the speedy trial time limit. The language of the speedy trial
statutes clearly created a right for criminal defendants to push
proceedings forward to trial if they wish to do so. This court
has twisted that right into a procedural trap for trial courts.
Until recently, because either the record was silent on the
issue, see State v. Alvarez, 189 Neb. 281, 202 N.W.2d 604(1972), or the issue simply had not been raised, a defendant’s
participation in setting a trial date had not been evaluated under
our statutory speedy trial scheme. Such issue has been squarely
raised here, and the majority opinion moves our flawed system
one step further in the wrong direction.
Here, the defendant and her counsel were present when the
court discussed the trial date with the parties and they agreed
to a trial date that fell outside of the allowable speedy trial time
limit. After the statutory time limit had passed but before the
agreed-upon trial date, the defendant filed a motion for abso-
lute discharge, which was granted. Even under a constitutional
analysis as used in Barker v. Wingo, 407 U.S. 514, 92 S. Ct.
2182, 33 L. Ed. 2d 101 (1972), the defendant had a responsibil-
ity to assert the right to a speedy trial prior to his or her request
for discharge.
The majority opinion now allows participation by the defense
in the setting of an untimely trial date and then a successful
motion to discharge under § 29-1208 based upon the very date
the defense agreed upon. Under the majority’s understanding
of the current statutory speedy trial scheme, the safest path for
trial courts is to establish progression orders with set trial dates
that will require knowing continuances if they are to be moved
beyond the established 6-month limit. Extra caution should be
taken in situations where initial appearances are waived by the
entry of written not guilty pleas.
Instead of expanding on our previous misstep, we should
correct the error this court committed in Alvarez as described
herein. For the foregoing reason, I respectfully dissent.