State v. Torres

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www.nebraska.gov/apps-courts-epub/
09/01/2020 09:07 AM CDT
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Nebraska Court of Appeals Advance Sheets
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STATE v. TORRES
Cite as 28 Neb. Ct. App. 758
State of Nebraska, appellee, v.
Federico Torres, appellant.
___ N.W.2d ___
Filed August 25, 2020. No. A-19-976.
1. Courts: Appeal and Error. Both the district court and a higher appel-
late court generally review appeals from the county court for error
appearing on the record.
2. Judgments: Appeal and Error. When reviewing a judgment for errors
appearing on the record, an appellate court’s inquiry is whether the deci-
sion conforms to the law, is supported by competent evidence, and is
neither arbitrary, capricious, nor unreasonable.
3. Appeal and Error. An appellate court independently reviews questions
of law in appeals from the county court.
4. 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.
5. Statutes: Appeal and Error. Statutory interpretation presents a ques-
tion of law, which an appellate court reviews independently of the lower
court’s determination.
6. Speedy Trial. If a defendant is not brought to trial before the running of
the time for trial as provided for in Neb. Rev. Stat. § 29-1207 (Reissue
2016), as extended by excluded periods, he or she shall be entitled to
his or her absolute discharge from the offense charged and for any other
offense required by law to be joined with that offense.
7. ____. The primary burden of bringing an accused person to trial within
the time provided by law is upon the State.
8. Speedy Trial: Proof. The burden of proof is on the State to show, by a
preponderance of the evidence, that one or more of the excluded periods
under Neb. Rev. Stat. § 29-1207(4) (Reissue 2016) are applicable.
9. Speedy Trial: Notice: Time. Nebraska law requires that a criminal
defendant must be properly notified of the need to appear in court on a
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STATE v. TORRES
Cite as 28 Neb. Ct. App. 758
given date and time before failure to so appear can initiate a period of
excludable time.
10. Judges: Judicial Notice: Words and Phrases. Judicial notice is not the
same as extrajudicial or personal knowledge of a judge.
11. Court Rules: Judicial Notice. A court is entitled to take judicial notice
of its own rules.
Appeal from the District Court for Hall County, Mark J.
Young, Judge, on appeal thereto from the County Court for
Hall County, Arthur S. Wetzel, Judge. Judgment of District
Court reversed and cause remanded with directions to dismiss.
Jerrod P. Jaeger, Deputy Hall County Public Defender, for
appellant.
Douglas J. Peterson, Attorney General, and Jordan Osborne
for appellee.
Moore, Chief Judge, and Riedmann and Arterburn,
Judges.
Arterburn, Judge.
INTRODUCTION
The Hall County Court denied Federico Torres’ motion
for absolute discharge of the criminal complaint filed against
him based upon an alleged violation of his right to a speedy
trial. Torres first appealed the county court’s judgment to the
district court, which affirmed. He now appeals to this court,
alleging that the district court erred in affirming the county
court’s denial of his motion because, among other reasons,
the county court improperly excluded from its speedy trial
calculation the period of time after Torres failed to appear at
his arraignment hearing through the time he was arrested on a
bench warrant approximately 16 months later.
We find merit to Torres’ assertion on appeal. There is no evi-
dence in the record to indicate that Torres ever received notice
of when he was to appear for his arraignment. As such, the
county court erred in excluding from its speedy trial calculation
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STATE v. TORRES
Cite as 28 Neb. Ct. App. 758
the time that Torres was presumed absent or unavailable. When
we add this time back into the speedy trial calculation, we con-
clude that the county court should have granted Torres’ motion
for absolute discharge. Thus, the district court erred in affirm-
ing the county court’s decision to deny the motion. We reverse,
and remand with directions to dismiss.
BACKGROUND
On September 14, 2017, the State filed a complaint in the
county court charging Torres with criminal mischief, a Class II
misdemeanor. That same day, the Hall County Attorney’s office
attempted to mail a letter to Torres at an address in Kearney,
Nebraska, to notify him that he was to appear in county court
on September 27 “to answer to” the charged offense. However,
the letter was returned to the county attorney’s office on
September 18 by the post office, which letter indicated on its
face that Torres had moved to a new address located in Sioux
City, Iowa.
On September 26, 2017, the day before Torres was to appear
in county court, the court filed a document titled “Notice.”
The filing provided that Torres’ arraignment hearing had been
rescheduled to October 25. A section of the filing with the
heading “Special Instructions” noted that the arraignment
hearing had been “[c]ontinued from 09/27/2017 at [Torres’]
request.” This section also indicated Torres’ address had been
“confirm[ed]” to be the same address in Sioux City that was
listed on the September 14 letter, which was returned to the
State as undeliverable. However, at the bottom of the filing,
Torres’ address was listed as the address the letter was origi-
nally sent to in Kearney.
Torres did not appear for the arraignment scheduled for
October 25, 2017. The court noted on the record: “Torres
is charged with criminal mischief. He had called the court.
He was originally scheduled for September 27th, called and
requested a continuance, it was continued until today’s date
for [Torres’] benefit.” The court then accepted the probable
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cause statement provided by the State and issued a bench war-
rant for Torres’ arrest.
Torres was arrested on the warrant on February 28, 2019.
He posted bond and was ordered to appear in county court on
March 20. At the hearing on March 20, Torres appeared and
was advised of his rights, the charge against him, and the pos-
sible penalties he faced. Torres asked that counsel be appointed
to represent him. The court granted his request and entered
a plea of not guilty on Torres’ behalf. The court scheduled
a status hearing for May 8. When the court informed Torres
of the May 8 hearing, Torres stated to the court, “I really,
I . . . couldn’t come in, you know, the last court. I live in South
Dakota, so hopefully that won’t be a problem for me coming
over here.”
On May 7, 2019, the day before the scheduled status hear-
ing, Torres filed a motion for absolute discharge. In the motion,
he asked that the court enter an order “dismissing the charges
against him in the above-captioned matter for the reason that
[Torres] has not been tried within six (6) months of the filing
of the charges.” Torres specifically indicated that the motion
was alleging a violation of both his constitutional and his
statutory rights to a speedy trial. However, in the lower courts
and in this appeal, Torres has focused his arguments on his
statutory right to a speedy trial. Based upon Torres’ filing of
the motion for absolute discharge, the county court entered an
order continuing the status hearing to July 3, and it noted that
such continuance was “on motion of Defense.”
At the July 3, 2019, hearing, the court considered Torres’
motion for absolute discharge. The State offered as exhibits
copies of pertinent court filings to support its argument that it
still had time to bring Torres to trial. Essentially, the State con-
tended that Torres could still be brought to trial because there
were three periods of time which should be excluded from
the 6-month speedy trial calculation. First, the State argued
that Torres requested a continuance of his arraignment, so the
time between September 27, 2017 (the day after he requested
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STATE v. TORRES
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the continuance), and October 25 (the day of the rescheduled
arraignment), should be excluded. Second, the State asserted
that because Torres failed to appear at the October 25 arraign-
ment and then was not located and arrested on the bench war-
rant until February 28, 2019, that such time should be excluded
as a delay resulting from the absence or unavailability of
Torres. In the alternative, the State asserted that the time period
between October 25, 2017, and February 28, 2019, should
be excluded for good cause. Finally, the State asserted that
because Torres had requested another continuance after filing
his motion for absolute discharge, the time period from May
8, 2019 (the day after the filing), through the time the court
rendered its decision on the motion should be excluded from
the 6-month speedy trial calculation.
Torres contended that the 6-month time period to bring him
to trial had long since passed. Torres focused his argument
in favor of this theory on the time period between October
25, 2017, when he failed to appear at the scheduled arraign-
ment, and February 28, 2019, when he was arrested. Torres
asserted that this period of time could not be excluded from
the 6-month speedy trial calculation because the State did not
sufficiently demonstrate that Torres ever received notice of
the rescheduled October 25, 2017, arraignment. Specifically,
Torres pointed to the lack of evidence to demonstrate that a
notice of hearing had been sent to his address in Sioux City.
Torres explained, “So without that proof being established, that
time cannot be excluded under that subdivision of the speedy
trial statute. We’re clearly well beyond six months, though.”
Torres offered exhibit 10, which explained his speedy trial cal-
culations. In exhibit 10, Torres appears to concede that the time
period between September 27, 2017, the day after he requested
a continuance of the arraignment hearing, through October 25,
the day the hearing was held, should be excluded because he
had requested the continuance.
After the parties presented evidence and argument, the
county court orally overruled Torres’ motion for absolute
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discharge. In its ruling, the court noted that the “only issue”
was whether notice was provided to Torres of the rescheduled
arraignment held on October 25, 2017. The court specifically
referred to exhibit 3, which was offered by the State and which
was a copy of the September 26, 2017, “Notice” filed by the
court. The court stated as follows:
That is Exhibit 3, which is the notice, and that notice
does have an address confirmation on it confirming the
address. It does show at the bottom, also, [an] address
of Kearney, Nebraska, and neither party has provided
information as to procedurally how that notice is in fact
sent, where it’s sent, who sends it. . . . However, that is
a court document. The Court is familiar with the policies
of how that is completed and done, and I think I can take
judicial notice of our own rules. I know that when [my]
bailiff . . . completes that and confirms an address upon a
request from the defendant, that she sends notice to that
address also. I agree the record doesn’t indicate, there’s
no specific certificate of service on it. However, [Torres]
did absent himself from the state of Nebraska.
After the court concluded that the period of time between
October 25, 2017, and February 28, 2019, should be excluded
from the 6-month speedy trial calculation, the court calculated
the time when Torres would have to be brought to trial:
[The] period from September 27th, 2017, until the warrant
was served is an excludable period of time for purposes
of speedy trial. That comes to 519 days. That means
that the new speedy trial date, based on that excludable
period, was August 14th, 2019. Giving [Torres] the benefit
of the doubt and not excluding any other periods until
May 8th, 2019, when [Torres] requested a continuance
until today’s date, July 3rd, that is an additional period of
time of 56 days. That extends the new speedy trial date
until October 9th, 2019. So the Court believes that the
State has at least until October 9th, 2019, to bring [Torres]
to trial.
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STATE v. TORRES
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Torres appealed to the district court the county court’s deci-
sion to overrule the motion for absolute discharge. In Torres’
statement of errors, he alleged that the county court had erred
by finding sufficient evidence to prove that he had received
notice of the October 25, 2017, arraignment and thus by exclud-
ing the time from October 25 to February 28, 2019, from the
6-month speedy trial calculation. Torres asserted that in finding
sufficient evidence of notice, the county court had improperly
supplemented the evidence provided by the State with its own
independent knowledge of court policies and procedures.
A hearing was held on Torres’ appeal on August 9, 2019. At
the hearing, Torres argued to the district court that he was not
provided with “legal notice” of the rescheduled October 25,
2017, arraignment and that, as a result, his subsequent absence
should not have been excluded from the speedy trial calcula-
tions. Specifically, Torres asserted that the notice provided by
the court or the State was purported to be sent by first-class
mail. Torres contended, “That’s not an adequate notice under
any typical principle of law.” Torres asserted his belief that the
service required for the notice of hearing was “the equivalent
of a civil summons or the actual service of the citation or for
the Court to tell the person in person.” There was nothing to
indicate that service of the notice of hearing was attempted in
these fashions.
Ultimately, the district court affirmed the judgment of the
county court to overrule Torres’ motion for absolute discharge.
In a written order, the district court found that the county court
“was not clearly wrong in inferring from Exhibit 3 (as uncon-
tradicted evidence) that [Torres] was informed of the hearing
date on October 25, 2017, and finding his nonappearance tolled
the speedy trial time from that date.” The district court noted,
“[Torres] cannot now use his nonappearance after seeking a
continuance of the arraignment as an excuse to avoid trial on
the merits.” The district court also found that contrary to an
argument raised in Torres’ brief, the time between September
27, 2017 (the day after Torres requested a continuance of
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the arraignment), to October 25 was properly excluded from
the speedy trial calculations because Torres had requested a
continuance of the arraignment. The district court concluded
that at the time Torres filed his motion for absolute discharge
in May 2019, the State still had over 3 months to bring him
to trial.
Torres appeals from the district court’s order that affirmed
the judgment of the county court.
ASSIGNMENTS OF ERROR
On appeal to this court, Torres’ assigned errors can be
summarized as follows: First, he alleges that the district
court erred in affirming the county court’s judgment denying
his motion for absolute discharge. Specifically, he challenges
the district court’s affirmance of the county court’s findings
regarding excludable time. Second, Torres alleges that the dis-
trict court erred in concluding that he received a fair hearing in
the county court when the county court improperly judicially
noticed facts regarding whether he received notice of the
arraignment.
STANDARD OF REVIEW
[1-3] In an appeal of a criminal case from the county court,
the district court acts as an intermediate court of appeals, and
its review is limited to an examination of the record for error
or abuse of discretion. State v. McGinn, 303 Neb. 224, 928
N.W.2d 391 (2019), modified on denial of rehearing 303 Neb.
931, 932 N.W.2d 83. Both the district court and a higher appel-
late court generally review appeals from the county court for
error appearing on the record. Id. When reviewing a judgment
for errors appearing on the record, an appellate court’s inquiry
is whether the decision conforms to the law, is supported by
competent evidence, and is neither arbitrary, capricious, nor
unreasonable. Id. But we independently review questions of
law in appeals from the county court. Id.
[4,5] Generally, a trial court’s determination as to whether
charges should be dismissed on speedy trial grounds is a
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factual question which will be affirmed on appeal unless
clearly erroneous. State v. Lovvorn, 303 Neb. 844, 932 N.W.2d
64 (2019). However, statutory interpretation presents a ques-
tion of law, which an appellate court reviews independently of
the lower court’s determination. Id.
ANALYSIS
Torres argues that the district court erred in affirming the
denial of his motion for absolute discharge. Specifically, he
asserts that two periods of time should not have been excluded
from the speedy trial calculation. First, Torres argues that the
period from the time he requested a continuance of his arraign-
ment date until the time the arraignment was held should not
be excluded from the calculation. Second, Torres argues that
the period from the time he failed to appear at the arraign-
ment and a warrant for his arrest was issued until the time
he was arrested on that warrant should not be excluded. We
address Torres’ assertion regarding the period of time between
his failure to appear at the arraignment and his ultimate arrest
on the bench warrant, because such analysis is dispositive to
this appeal.
[6] The statutory right to a speedy trial is set forth in Neb.
Rev. Stat. §§ 29-1207 and 29-1208 (Reissue 2016). State
v. Lovvorn, supra; State v. Vela-Montes, 287 Neb. 679, 844
N.W.2d 286 (2014). Section 29-1207(1) provides that “[e]very
person indicted or informed against for any offense shall be
brought to trial within six months, and such time shall be com-
puted as provided in this section.” If a defendant is not brought
to trial before the running of the time for trial as provided for
in § 29-1207, as extended by excluded periods, he or she shall
be entitled to his or her absolute discharge from the offense
charged and for any other offense required by law to be joined
with that offense. State v. Lovvorn, supra; State v. Vela-Montes,
supra. As is pertinent to this case, § 29-1207(4) includes the
following periods, which shall be excluded in computing the
time for trial:
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(b) The period of delay resulting from a continuance
granted at the request or with the consent of the defend­
ant or his or her counsel. A defendant without counsel
shall not be deemed to have consented to a continuance
unless he or she has been advised by the court of his or
her right to a speedy trial and the effect of his or her
consent. . . .
....
(d) The period of delay resulting from the absence or
unavailability of the defendant.
[7,8] The primary burden of bringing an accused person to
trial within the time provided by law is upon the State. State
v. Beitel, 296 Neb. 781, 895 N.W.2d 710 (2017). If the State
does not bring a defendant to trial within the permitted time,
as extended by any periods excluded under § 29-1207(4), the
defendant is entitled to absolute discharge from the offense
charged. State v. Beitel, supra. The burden of proof is on the
State to show, by a preponderance of the evidence, that one or
more of the excluded periods under § 29-1207(4) are appli-
cable. State v. Beitel, supra.
To calculate the deadline for trial under the speedy trial stat-
utes, a court must exclude the day the State filed the informa-
tion, count forward 6 months, back up 1 day, and then add any
time excluded under § 29-1207(4). State v. Lovvorn, 303 Neb.
844, 932 N.W.2d 64 (2019); State v. Vela-Montes, supra. In the
present case, the complaint was filed on September 14, 2017,
giving the State until March 14, 2018, to bring Torres to trial if
there were no excludable days. While the parties both acknowl-
edge there are excludable days, they disagree as to which days
are excludable and what the permitted time was that the State
had to bring Torres to trial.
[9] The district court affirmed the county court’s finding that
Torres was absent or unavailable pursuant to § 29-1207(4)(d)
from October 25, 2017, when he failed to appear for his
arraignment, to February 28, 2019, when he was arrested on
the bench warrant. As such, the district court affirmed the
county court’s decision to exclude this 491-day period from
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its speedy trial calculation. However, Nebraska law requires
that a criminal defendant must be properly notified of the
need to appear in court on a given date and time before failure
to so appear can initiate a period of excludable time. State v.
Richter, 240 Neb. 223, 481 N.W.2d 200 (1992). See, State v.
Groves, 238 Neb. 137, 469 N.W.2d 364 (1991); State v. Beck,
212 Neb. 701, 325 N.W.2d 148 (1982). When this rule is
applied in conjunction with the burden upon the State to prove
that any given period was excludable, the State in this case
was required to prove, by a preponderance of the evidence,
that Torres had notice of the October 25, 2017, hearing for
which he failed to appear. Upon our review of the record, we
conclude that the State did not meet its burden of proof in
this regard.
There is no evidence in our record showing that Torres was
ever notified to appear for the rescheduled arraignment on
October 25, 2017. The September 26 notice filed by the county
court indicates that the arraignment had been continued from
September 27 at Torres’ request. We note that there is actu-
ally no evidence in our record to indicate that Torres was the
person who telephoned to request the continuance, other than
in exhibit 10, where Torres’ counsel appears to acknowledge
Torres’ action. It is also not clear how Torres would have
known to request the continuance. He was not arrested directly
for the offense nor was there a citation issued to him. The only
notification that was attempted was a letter from the county
attorney’s office. The record indicates that he never received
that letter. However, assuming that it was Torres who requested
the continuance of the arraignment, there is nothing to indicate
that Torres was informed of the rescheduled hearing date at the
time he requested the continuance. In fact, noticeably absent
from our record is an order for hearing signed by a judge or
clerk magistrate accompanying the notice document, which
memorializes the county court’s order continuing the arraign-
ment. We note that the notice document was signed by a person
designated only as a “[c]lerk.”
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Moreover, there is no certificate of service attached to the
notice document that would indicate whether the notice was
ever forwarded to the parties. The body of the notice lists
two different addresses for Torres—one in Kearney and one
in Sioux City. The Kearney address was the same address
that the State used when mailing the original letter, which
attempted to notify Torres of the pending charges against him.
The letter was subsequently returned as undeliverable at that
address. The Sioux City address was the forwarding address
provided to the State by the post office as a current address
for Torres. In addition, the Sioux City address is noted as
Torres’ “confirm[ed]” address on the notice. Despite which
address was correct, or whether either address was correct,
there is no indication that the notice was ever mailed or
otherwise forwarded to one or both of the addresses. As the
county court correctly stated, “[N]either party has provided
information as to procedurally how that notice is in fact sent,
where it’s sent, [or] who sends it.” Notably, the State did not
call anyone from the clerk’s office to testify as to the specific
handling of the notice. In addition, Torres never provided any
information about his correct mailing address in September
2017 or whether he actually received the notice of the October
25 arraignment.
Despite this lack of tangible evidence regarding whether the
notice was ever forwarded to Torres, the county court deter-
mined, following the close of the evidentiary portion of the
hearing, that there had been proper notice by taking judicial
notice of its own policies and its “own rules.” Specifically, the
county court stated:
I know that when [my] bailiff . . . completes that and con-
firms an address upon a request from the defendant, that
she sends notice to that address also. I agree the record
doesn’t indicate, there’s no specific certificate of service
on it. However, [Torres] did absent himself from the state
of Nebraska.
We find that the county court erred in judicially noticing the
fact that the notice was sent to both the Kearney and the Sioux
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City addresses. We further find that the district court erred by
relying on the county court’s “mental process” and inferring
from exhibit 3 that proper procedures were followed.
[10] Neb. Evid. R. 201(2), Neb. Rev. Stat. § 27-201(2)
(Reissue 2016), pertains to judicial notice of adjudicative facts
and states: “A judicially noticed fact must be one not subject
to reasonable dispute in that it is either (a) generally known
within the territorial jurisdiction of the trial court or (b) capable
of accurate and ready determination by resort to sources whose
accuracy cannot reasonably be questioned.” A fact is adjudica-
tive if the fact affects the determination of a controverted issue
in litigation. State v. Vejvoda, 231 Neb. 668, 438 N.W.2d 461
(1989). Judicial notice, however, is not the same as extraju-
dicial or personal knowledge of a judge. Id. “‘What a judge
knows and what facts a judge may judicially notice are not
identical data banks. . . . [A]ctual private knowledge by the
judge is no sufficient ground for taking judicial notice of a fact
as a basis for a finding or a final judgment . . . .’” Id. at 677,
438 N.W.2d at 468.
[11] A court is also entitled to take judicial notice of its
own rules. See Simmons v. Murray, 189 Neb. 695, 204 N.W.2d
800 (1973), overruled on other grounds, Omaha Nat. Bank v.
Mullenax, 211 Neb. 830, 320 N.W.2d 755 (1982). We can take
judicial notice of the trial court’s local rules when they are filed
with the Clerk of the Nebraska Supreme Court. Geiss v. Geiss,
20 Neb. Ct. App. 861, 835 N.W.2d 774 (2013). In our examination
of the local county court rules of the Ninth Judicial District, we
could find no rule addressing notice procedures.
Here, the court judicially noticed the fact that the September
26, 2017, notice was sent to both the Kearney address and
the Sioux City address. The court indicated that it was apply-
ing its knowledge of how the court’s bailiff typically handles
the mailing of notice documents. However, this knowledge
does not appear to be the type that is either generally known
within the territorial jurisdiction of the trial court or capable of
accurate and ready determination by resort to sources whose
accuracy cannot reasonably be questioned. Rather, it appears
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that the court’s knowledge of the bailiff’s typical procedures
is more akin to extrajudicial or personal knowledge. Such
information is not appropriate for judicial notice. As such,
we conclude that the county court erred in using its personal
knowledge to absolve the State from making any affirmative
showing that notice of the arraignment was properly provided
to Torres. We do not consider the county court’s judicially
noticed facts in determining whether the State proved by a pre-
ponderance of the evidence that Torres received notice of the
October 25 arraignment.
We determine that the State failed to meet its burden of
proof that Torres had notice of the October 25, 2017, hear-
ing for which he failed to appear. As such, we find that the
491-day period from the October 25 arraignment to February
28, 2019, when Torres was arrested on the bench warrant,
should not have been excluded from the speedy trial calcula-
tion. Without this excluded period, it is clear that the State
failed to bring Torres to trial within 6 months of the filing
of the complaint on September 14, 2017, despite any other
excludable time periods.
CONCLUSION
As the State has failed to bring Torres to trial within 6
months of the filing of the complaint, his discharge is man-
dated by statute. The judgment of the district court is reversed,
and the cause is remanded with directions to remand the case
to the county court with directions to dismiss it.
Reversed and remanded with
directions to dismiss.