State Of Neb. v. Curry
| Decision Date | 23 February 2010 |
| Docket Number | No. A-09-536.,A-09-536. |
| Citation | 18 Neb.App. 284,790 N.W.2d 441 |
| Parties | STATE of Nebraska, appellee, v. Joshua CURRY, appellant. |
| Court | Nebraska Court of Appeals |
OPINION TEXT STARTS HERE
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Syllabus by the Court1. 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. Judgments: Appeal and Error. On a question of law, an appellate court is obligated to reach a conclusion independent of the determination reached by the court below.
3. Speedy Trial: Proof. The State has the burden of proving that one or more of the excluded periods of time under Neb.Rev.Stat. § 29-1207(4) (Reissue 1995) are applicable if the defendant is not tried within 6 months of the filing of the information in a criminal action.
4. Speedy Trial: Indictments and Informations: Time. Nebraska's speedy trial statutes provide in part that every person indicted or informed against for any offense shall be brought to trial within 6 months, and such time shall be computed as provided in those statutes.
5. Speedy Trial: Indictments and Informations. Where a felony offense is involved, the 6-month speedy trial period commences to run from the date the indictment is returned or the information filed, and not from the time the complaint is filed.
6. Speedy Trial. Certain periods of delay are excluded from the speedy trial computation, including (1) the period of delay resulting from other proceedings concerning the defendant, including but not limited to the time from filing until final disposition of pretrial motions of the defendant, including motions to suppress evidence, motions to quash the indictment or information, demurrers, and pleas in abatement, and (2) the period of delay resulting from a continuance granted at the request or with the consent of the defendant or his counsel.
7. Speedy Trial. To calculate the time for speedy trial purposes, a court must exclude the day the information was filed, count forward 6 months, back up 1 day, and then add any time excluded under Neb.Rev.Stat. § 29-1207(4) (Reissue 1995) to determine the last day the defendant can be tried.
8. Speedy Trial: Pretrial Procedure. The plain terms of Neb.Rev.Stat. § 29-1207(4)(a) (Reissue 1995) exclude all time between the time of the filing of a defendant's pretrial motions and their final disposition, regardless of the promptness or reasonableness of the delay. Such motions include a defendant's motion to suppress evidence and a motion for discovery filed by the defendant.
9. Speedy Trial: Pretrial Procedure. In a speedy trial analysis under Neb.Rev.Stat. § 29-1207(4)(a) (Reissue 1995), the excludable period commences on the day immediately after the filing of a defendant's pretrial motion.
10. Speedy Trial: Pretrial Procedure. Final disposition under Neb.Rev.Stat. § 29-1207(4)(a) (Reissue 1995) occurs on the date the defendant's motion is granted or denied.
11. Speedy Trial: Pretrial Procedure: Presumptions. Pursuant to Neb.Rev.Stat. § 29-1207(4)(a) (Reissue 1995), it is presumed that a delay in hearing defense pretrial motions is attributable to the defendant unless the record affirmatively indicates otherwise.
12. Speedy Trial: Indictments and Informations: Time. The time chargeable to the State ceases to run or is tolled during the interval between the State's dismissal of an initial information and the filing of a second information charging the defendant with the same crime as alleged in the dismissed information.
13. Speedy Trial: Indictments and Informations: Time. When two successive informations charge a defendant with the same crime, the time which runs on the speedy trial clock while the first information is pending must be combined with the calculations of includable and excludable time during the pendency of the second information, before the motion to discharge is filed, in order to determine whether the allowable time under the speedy trial act has run.
14. Speedy Trial: Waiver. The statutory right to a speedy trial is not a personal right that can be waived only by a defendant.
15. Speedy Trial: Pretrial Procedure: Attorneys at Law. Defense counsel's motions to withdraw are pretrial motions tolling the speedy trial clock; the speedy trial clock is tolled from when a motion to withdraw is made until new counsel is appointed.
16. Courts: Speedy Trial. Trial courts are to make specific findings in order to facilitate appellate review of all determinations of excludable periods under Neb.Rev.Stat. § 29-1207(4) (Reissue 1995).
17. Speedy Trial: Indictments and Informations: Dismissal and Nonsuit. The speedy trial clock cannot run past the date that the information was dismissed.
18. Speedy Trial: Appeal and Error. The speedy trial clock remains tolled until a motion to discharge is finally resolved, including during an appeal until action is taken on the appellate court's mandate.
James R. Mowbray and Kelly S. Breen, of Nebraska Commission on Public Advocacy, for appellant.
Jon Bruning, Attorney General, and Stacy M. Foust for appellee.
On February 27, 2007, Joshua Curry was charged with first degree sexual assault under Neb.Rev.Stat. § 28-319(1)(c) (Reissue 1995), a Class II felony. The information alleged that Curry, being more than 19 years of age, did subject K.B., who was less than 16 years of age, to sexual penetration on July 1, 2006, in Cheyenne County, Nebraska. Upon the State's motion, this information was dismissed without prejudice on July 25, 2007. For convenience, this information shall be referred to hereinafter as the “first information.”
On January 8, 2009, a complaint was filed in Cheyenne County Court charging Curry with the same offense as charged in the first information. On January 15, a preliminary hearing was held. Curry was bound over to the Cheyenne County District Court, and an information was filed on January 20. This information shall hereinafter be referred to as the “second information.” On March 6, Curry filed a motion to discharge under Nebraska's speedy trial act, which motion the district court denied on May 27. Two days later, Curry filed a notice of appeal to this court from the denial of his motion to discharge.
The ultimate question in this appeal is whether the 6 months in which to bring Curry to trial on the charge of first degree sexual assault had run when he filed his motion to discharge on March 6, 2009, after excludable time periods and periods in which the speedy trial statutes were tolled are calculated. We find that the time in which to bring Curry to trial had not run, and thus, we affirm the district court's denial of the motion to discharge, but we modify the calculation of the days remaining on the speedy trial clock as explained below.
Curry's single assignment of error is that “the [district] court erred in finding that time periods which caused no delay should count against [him] and be excluded from the statutory speedy trial computation” by application of Neb.Rev.Stat. § 29-1207(4)(a) and (b) (Reissue 1995).
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. Williams, 277 Neb. 133, 761 N.W.2d 514 (2009). On a question of law, an appellate court is obligated to reach a conclusion independent of the determination reached by the court below. State v. Molina, 271 Neb. 488, 713 N.W.2d 412 (2006).
This case, like most speedy trial appeals, involves the detailing of a variety of procedural events and motions during the course of the prosecution of a case and application of largely well-established principles under Nebraska's speedy trial act to determine periods of time which are excluded from the speedy trial clock. This case is somewhat more involved because the first information was dismissed, and then a second information alleging the same crime was refiled. We believe that it is most efficient to recite the pertinent procedural events in the analysis section of our opinion.
We begin by first setting forth the fundamental principles of law which govern our analysis, the first of which is that the State has the burden of proving that one or more of the excluded periods of time under § 29-1207(4) are applicable if the defendant is not tried within 6 months of the filing of the information in a criminal action. State v. Groves, 238 Neb. 137, 469 N.W.2d 364 (1991). The Nebraska Supreme Court has conveniently set forth additional applicable principles in its recent opinion in State v. Williams, which we quote:
Nebraska's speedy trial statutes provide in part that “[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.” Where a felony offense is involved, the 6-month speedy trial period commences to run from the date the indictment is returned or the information filed, and not from the time the complaint is filed. Certain periods of delay are excluded from the speedy trial computation, including: To calculate the time for speedy trial purposes, a court must...
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...v. French, 262 Neb. 664, 633 N.W.2d 908 (2001); State v. Hutton, 11 Neb.App. 286, 648 N.W.2d 322 (2002). See, also, State v. Curry, 18 Neb.App. 284, 790 N.W.2d 441 (2010). 6. See, State v. Mortensen, supra note 1; State v. Turner, 252 Neb. 620, 564 N.W.2d 231 (1997). See, also, State v. Fat......
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State v. Space, S-21-837.
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State v. Bredemeier, A-11-126.
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