State v. Hert, 39596

• Decision Date: 19 December 1974
• Docket Number: No. 39596,39596
• Citation: 192 Neb. 751,224 N.W.2d 188
• Parties: STATE of Nebraska, Appellee, v. William L. HERT, Appellant.
• Court: Nebraska Supreme Court

Page 188

224 N.W.2d 188

192 Neb. 751

STATE of Nebraska, Appellee, v. William L. HERT, Appellant.

No. 39596.

Supreme Court of Nebraska.

Dec. 19, 1974.

Syllabus by the Court

1. For a question of constitutionality of a statute to be considered in this court, it must be properly raised in the trial court. If it is not raised in the trial court, it may not be considered by this court.

2. Failure of the defendant to move for discharge prior to trial or entry of a plea of guilty or nolo contendere constitutes a waiver of the right to speedy trial provided for by section 29--1208, R.S.Supp., 1972.

3. Where, upon direct appeal to this court from a finding of guilty in a criminal prosecution, a constitutional claim of ineffectiveness of counsel is made, we will not consider the issue where the determination of its merits may depend upon the existence of facts not shown in the record.

4. It is the duty of the trial court and the prosecutor to bring defendants in criminal cases to trial within the time provided by section 29--1207, R.S.Supp., 1972. However, under the provisions of section 29--1209, R.S.Supp., 1972, it is incumbent upon defendant and his counsel to file a timely motion for discharge in order to avoid the waiver provided for by that statute.

Michael T. Levy, Omaha, for appellant.

Clarence A. H. Meyer, Atty. Gen., Michael R. Johnson, Sp. Asst. Atty. Gen., Lincoln, for appellee.

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

CLINTON, Justice.

Defendant was charged under the provisions of section 28--510, R.R.S.1943, with having concealed certain cattle which he knew had been stolen. He entered a plea of not guilty, waived a trial by jury, and asked to be tried by the court alone. At the conclusion of trial by the judge he was found guilty and sentenced to a term in the Nebraska Penal and Correctional Complex.

On appeal he assigns as error the following: (1) The evidence is insufficient to sustain the finding of guilty; (2) the statute defining the charge, section 28--510, R.R.S.1943, is unconstitutional because in its enactment the following provisions of Article III, section 14, of the Constitution of Nebraska, 'No bill shall contain more than one subject, and the same shall be clearly expressed in the title,' were violated; (3) the defendant did not have effective assistance of counsel under the Sixth Amendment to the Constitution of the United States because counsel failed before trial to move for the defendant's absolute discharge under the terms of section 29--1209, R.S.Supp., 1972; and (4) the trial court erred in failing on its own initiative to determine whether the defendant intended knowingly and voluntarily to waive his right to absolute discharge under section 29--1209, R.S.Supp., 1972, for failure of the State to bring him to trial within the time provided by section 29--1207, R.S.Supp., 1972. We affirm.

We will not enter into a recital of the State's evidence. Suffice it to say that the bill of exceptions has been carefully read by us and that record demonstrates that the finding of guilty is supported by evidence which is not only legally sufficient, but also highly persuasive of its truth. The defendant's first assignment is without merit.

None of the other issues raised here were presented to the trial court for determination. The issue of the constitutionality of a statute under which a defendant is prosecuted may be raised in a variety of ways, including demurrer, motion, and by plea of not guilty. 16 C.J.S. Constitutional Law § 96, p. 343. However, we have long held that the issue must be specifically called to the trial court's attention in some way so that it has an opportunity to rule upon it and that we will not ordinarily consider for the first time in this court the constitutionality of the statute. Pill v. State, 43 Neb. 23, 61 N.W. 96; State v. Schwade, 177 Neb. 844, 131 N.W.2d 421; State v. Tucker, 183 Neb. 577, 162 N.W.2d 774. Cf. State v. Goodseal, 186 Neb. 359, 183 N.W.2d 258. In Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, 84 A.L.R.2d 933, the United States Supreme Court made the observation that, even where a federal constitutional question is involved, state procedural requirements governing the assertion and pursuance of direct and collateral constitutional challenges to criminal prosecutions must be respected. This observation certainly applies a fortiori where a provision of our own state Constitution is concerned. Erving v. State, 174 Neb. 90, 116 N.W.2d 7. We, therefore, do not consider the constitutional question raised by the second assignment.

Assignments (3) and (4) are related and will be considered together. The information in this prosecution was filed May 18, 1973. The defendant was arraigned on August 10, 1973. The trial commenced on January 2, 1974, which is more than 6 months after the filing of the information and, under the provisions of section 29--1208, R.S.Supp., 1972, the defendant would have been entitled to his absolute discharge provided he made a timely motion and provided that none of the excluded periods mentioned in section 29--1207, R.S.Supp., 1972, were applicable. Whether any such excluded periods might have been applicable we have no way of knowing. Section 29--1209, R.S.Supp., 1972, states: 'Failure of the defendant to move for discharge prior to trial or entry of a plea of guilty or nolo contendere shall constitute a waiver of the right to speedy trial.' The rule set forth in the statute is one which is universally applied. State v. Pilgrim, 182 Neb. 594, 156 N.W.2d 171; Annotation, 57 A.L.R.2d § 11, p. 336, 57 A.L.R.2d Later Case Service, § 11, p. 148; A.B.A. Standards Relating to Speedy Trial, § 4.1. If a defendant claims to have a right to...