State v. Alvarez

• Decision Date: 24 November 1972
• Docket Number: No. 38444,38444
• Citation: 202 N.W.2d 604,189 Neb. 281
• Parties: STATE of Nebraska, Appellee, v. Alvaro ALVAREZ, Appellant.
• Court: Nebraska Supreme Court

Page 604

202 N.W.2d 604

189 Neb. 281

STATE of Nebraska, Appellee, v. Alvaro ALVAREZ, Appellant.

No. 38444.

Supreme Court of Nebraska.

Nov. 24, 1972.

Syllabus by the Court

1. The 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.

2. If a defendant is not brought to trial within the time provided for and as determined by valid statutory standards, he is, in the absence of an express waiver or a waiver as provided by statute, entitled to his absolute discharge from the offense alleged in the indictment or information as well as for any other offense coming within the term 'required by law to be joined with that offense.'

3. A failure by a defendant to demand a trial within the time he 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 his rights under either the statutes or the Constitution of Nebraska, but is a factor which, while not constituting good cause by itself, may be considered along with other circumstances in determining whether there was 'good cause' for a delay in trial under the provisions of section 29--1207(4)(f), R.S.Supp., 1971.

4. Where a defendant who has been charged in an indictment or information is not brought to trial within 6 months from the date of the return of the indictment or the filing of the information and before trial or entry of a plea of guilty or nolo contendere moves for his absolute discharge, the burden is upon the State to prove by a substantial preponderance of the evidence that one or more of the excluded periods provided for by section 29--1207(4)(a) through (f), R.S.Supp., 1971, is applicable.

5. From and after 7 days after the filing of this opinion, a general finding of a trial court that 'good cause' has existed under the provisions of section 29--1207(4)(f), R.S.Supp., 1971, for extending beyond 6 months from the filing of the information the period for bringing the defendant to trial will no longer suffice, and the trial court will from that time on be required to make specific findings as to the cause or causes of such extensions and the period of extension attributable to such causes. The substantial preponderance of the evidence must support such findings.

James T. Hansen, C. F. Fitzke, Gering, for appellant.

Clarence A. H. Meyer, Atty. Gen., Warren D. Lichty, Jr., Asst. Atty. Gen., Robert G. Avey, Sp. Asst. Atty. Gen., Lincoln, for appellee.

Heard before WHITE, C.J., and SPENCER, BOSLAUGH, SMITH, McCOWN, NEWTON, and CLINTON, JJ.

CLINTON, Justice.

The defendant was charged with the unlawful sale of hashish, a form of cannabis or marijuana. On December 6, 1971, he was tried before a jury which returned a verdict of guilty. The court imposed a sentence of 1 to 2 years in the Nebraska Penal and Correctional Complex. He then perfected his appeal to this court.

He makes the following assignments of error: (1) The court erred in denying his motion for absolute discharge because of the failure of the State to bring him to trial within the time provided by sections 29--1205 to 29--1209, R.S.Supp., 1971, which became effective April 30, 1971; (2) the court erred in denying his motion for a directed verdict because the verdict is not sustained by sufficient evidence; and (3) the court erred in overruling objections to alleged hearsay evidence. This last assignment, however, is not discussed in the briefs and we therefore disregard it. Revised Rules of the Supreme Court, Rule 8a 2(3).

We have carefully reviewed the evidence and find the assignment as to the sufficiency of the evidence is not well taken. The record clearly and without contradiction supports a finding that the defendant actually solicited the sale of hashish to two undercover agents and was present when the sale was accomplished by the defendant's associate and accomplice, one Wagner, by the delivery of the hashish to the agents by Wagner and the receipt by him of the agreed price. The defendant did not introduce any evidence in his own behalf. Expert testimony by the State established the nature of the substance sold. It is only where there is a total failure of proof to establish a material allegation of the information, or the testimony is of so weak or doubtful of character that a conviction based thereon cannot be sustained, that the trial court is justified in directing a verdict for the defendant. State v. Knecht, 181 Neb. 149, 147 N.W.2d 167.

We now turn to the matter of the motion for absolute discharge. In 1971 the Legislature enacted L.B. 436, sections 29--1205 to 29--1209, R.S.Supp., 1971. Section 29--1207, R.S.Supp., 1971, states in part: 'Every person indicted or informed against for any offense shall be brought to trial within six months . . ..' It then goes on to provide that the 6-month period shall begin to run from the date of indictment or filing of the information and in the case of indictments or informations pending on April 30, 1971, the period begins to run from April 30, 1971. Section 29--1208, R.S.Supp., 1971, provides that: 'If a defendant is not brought to trial before the running of the time for trial, as extended by excluded periods, he shall be entitled to his absolute discharge from the offense charged . . ..'

Section 29--1207, R.S.Supp., 1971, in subsection (4)(a) through (f), also provides that certain periods shall be excluded in the computations. The only possible applicable subsection under the evidence in this case is subsection (4)(f) which reads: 'Other periods of delay not specifically enumerated herein, but only if the court finds that they are for good cause.'

The complaint against the defendant was filed in the county court of Scotts Bluff County in January 1971. Thereafter he was accorded a preliminary hearing, released on bail, and bound over to the district court. The information was filed on March 25, 1971. As we have already noted, the defendant was not brought to trial until December 6, 1971. Since the information against the defendant was filed prior to April 30, 1971, the 6-month period began to run on April 30, 1971, and except for any excluded periods, expired the last day of October 1971. The defendant was therefore under the terms of the statute entitled to his absolute discharge unless one of the statutory periods of extension is applicable, or unless he has waived his right to discharge. This has been the uniform holding of this court under statutory provisions which the ones here involved replace. Critser v. State, 87 Neb. 727, 127 N.W. 1073; State v. Bruns, 181 Neb. 67, 146 N.W.2d 786; State v. Fromkin, 174 Neb. 849, 120 N.W.2d 25.

After the filing of the information on March 25, 1971, there was no further activity in the defendant's case by either the State or the defense until July 29, 1971, when the county attorney filed a motion for appearance of the defendant, which motion also included the following: '. . . that this case be given preference over civil cases presently pending in this Court in order to effectuate the right of the defendant to a speedy trial.' The court then entered an order for the defendant to appear on August 5, 1971. He appeared at that time with counsel, was arraigned on the information, stood mute, and a plea of not guilty was entered for him. The court thereupon 'ordered the trial of said cause set for hearing before a jury on the 6th day of December 1971, . . . this being the earliest available date that the Court had for trial thereof.'

On September 1, 1971, the State filed a motion to consolidate the trial of the defendant with that of Wagner. The matter was heard on November 4, 1971, at which time the defendant was represented by counsel, and the court ordered the consolidation of the two trials.

The record in this case is 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 entered and at the time the order for consolidation was entered.

On November 10, 1971, the defendant filed his motion for discharge under the terms of the statutes. The court set the motion for hearing and on November 19 and 26, 1971, the hearing was held before the court, at which both the State and the defendant presented evidence.

This evidence related generally to the business of the district court for Scotts Bluff County from May 2, 1971, to the date of hearing, the state of the docket, and the future business of the court to the time of the scheduled trials. Following the hearing the court entered an order overruling the motion for discharge, which order included the following findings: 'The Court being duly advised in the premises finds that good cause has been shown and defendant's motion should be overruled.'

The determination of the defendant's claimed right to discharge under the provisions of the statute depends upon an analysis of the statute and its purposes, all as related to the evidence in this case insofar as it pertains to the cause of the failure to bring the defendant to trial within 6 months from the date of April 30, 1971. We will first analyze the statute and then later, as may be necessary, summarize the pertinent evidence.

The statute concerns itself with two things: (a) The right of the accused to a speedy trial, and (b) the promotion of the interest of the public in the prompt disposition of criminal cases. It then directs that 'insofar as practicable,' (1) the trial of criminal cases shall be given preference over civil cases, and (2) the trial of defendants in custody and those whose pretrial liberty presents unusual risks shall be given preference over other criminal trials. S. 29--1205, R.S.Supp., 1971.

Section 29--1206, R.S.Supp., 1971, provides that applications for continuance must be made in asccordance with section 25--1148, R.R.S1943, 'but in criminal cases in the...