948 N.W.2d 288 (Neb.App. 2020), A-19-976, State v. Torres
| Citation | 948 N.W.2d 288, 28 Neb.App. 758 |
| Opinion Judge | Arterburn, Judge. |
| Party Name | STATE of Nebraska, appellee, v. Federico TORRES, appellant. |
| Attorney | Jerrod P. Jaeger, Deputy Hall County Public Defender, for appellant. Douglas J. Peterson, Attorney General, and Jordan Osborne, for appellee. |
| Judge Panel | Moore, Chief Judge, and Riedmann and Arterburn, Judges. |
| Case Date | August 25, 2020 |
| Court | Nebraska Court of Appeals |
Page 288
Page 289
[Copyrighted Material Omitted]
Page 290
1. Courts: Appeal and Error. Both the district court and a higher appellate 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 decision 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 question 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 [28 Neb.App. 759] 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.
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 evidence 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 [28 Neb.App. 760] the time that Torres was presumed absent or unavailable. When we add this time
Page 291
back into the speedy trial calculation, we conclude that the county court should have granted Torres' motion for absolute discharge. Thus, the district court erred in affirming 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 originally 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 [28 Neb.App. 761] cause statement provided by the State and issued a bench warrant 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 possible 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 hearing, 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
Page 292
of pertinent court filings to support its argument that it still had time to bring Torres to trial. Essentially, the State contended 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 [28 Neb.App. 762] 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 arraignment and then was not located and arrested on the bench warrant 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 arraignment, 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 calculations. 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...
To continue reading
Request your trial