State v. Mortensen
| Decision Date | 10 January 2014 |
| Docket Number | No. S–12–454,S–12–454 |
| Parties | State of Nebraska, appellee, v. Randy L. Mortensen, appellant. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Petition for further review from the Court of Appeals, Sievers, Pirtle, and Riedmann, Judges, on appeal thereto from the District Court for Butler County, Mary C. Gilbride, Judge. Judgment of Court of Appeals affirmed.
Robert J. Bierbower for appellant.
Jon Bruning, Attorney General, and Stacy M. Foust for appellee.
1. 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. Statutes: Appeal and Error. The meaning and interpretation of a statute are questions of law. An appellate court independently reviews questions of law decided by a lower court.
3. Speedy Trial. To calculate the deadline for trial under the speedy trial statutes, a court must exclude the day the State filed the information, count forward 6 months, back up 1 day, and then add any time excluded under Neb.Rev.Stat. § 29–1207(4) (Cum.Supp.2012).
4. Speedy Trial. Under the speedy trial statutes, it is axiomatic that an accused cannot and should not be permitted to take advantage of a delay where the accused is responsible for the delay by either action or inaction.
5. Speedy Trial: Waiver. The statutory right to a speedy trial is not unlimited and can be waived.
6. Statutes: Appeal and Error. An appellate court will not read into a statute a meaning that is not there.
7. Speedy Trial: Waiver. A defendant waives his or her statutory right to a speedy trial when the period of delay resulting from a continuance granted at the request of the defendant or his or her counsel extends the trial date beyond the statutory 6–month period.
8. Speedy Trial: Waiver: Appeal and Error. A defendant's motion to discharge based on statutory speedy trial grounds will be deemed to be a waiver of that right under Neb.Rev.Stat. § 29–1207(4)(b) (Cum.Supp.2012) where (1) the filing of such motion results in the continuance of a timely trial to a date outside the statutory 6–month period, as calculated on the date the motion to discharge was filed, (2) discharge is denied, and (3) that denial is affirmed on appeal.
In April 2012, Randy L. Mortensen filed his second motion to discharge based upon his statutory right to a speedy trial. The district court overruled the motion and found that the State had 28 days remaining to bring Mortensen to trial. Mortensen appealed, and the Nebraska Court of Appeals affirmed via a memorandum opinion. See State v. Mortensen, No. A–12–454, 2013 WL 2106665 (Neb.App. Apr. 23, 2013) ().
The State petitioned for further review, arguing that additional days should be excluded from the speedy trial calculation because Mortensen's motion was frivolous and prejudiced the State. We granted the State's petition for further review and, upon consideration, hold that Mortensen has waived his statutory right to a speedy trial.
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. Brooks, 285 Neb. 640, 828 N.W.2d 496 (2013).
The meaning and interpretation of a statute are questions of law. We independently review questions of law decided by a lower court. Pinnacle Enters. v. City of Papillion, 286 Neb. 322, 836 N.W.2d 588 (2013).
On October 27, 2009, Mortensen was charged by information with assault while being incarcerated and of being a habitual criminal. The current appeal involves his second attempt to obtain absolute discharge based on statutory speedy trial grounds.
On October 25, 2010, Mortensen filed his first motion to discharge under the speedy trial statutes. The district court overruled the motion, and Mortensen appealed. In State v. Mortensen, 19 Neb.App. 220, 809 N.W.2d 793 (2011), the Court of Appeals affirmed the order denying absolute discharge and calculated that there were 112 days remaining in which to bring Mortensen to trial in the district court.
Mortensen sought further review of the Court of Appeals' decision, which this court denied on December 14, 2011. On January 11, 2012, the Court of Appeals issued its mandate, and on January 17, the district court entered judgment on the mandate. The district court scheduled Mortensen's trial for April 11.
On April 10, 2012, Mortensen filed a second motion to discharge based on the alleged violation of his statutory right to a speedy trial. The parties appeared before the district court for a hearing on April 11, the date originally scheduled for trial. The matter was taken under advisement, and on May 14, the court overruled Mortensen's motion. It concluded:
This matter was set for trial well within the 112 remaining days after the entry of judgment on the mandate. [Mortensen] sets forth no basis for a determination that the speedy trial time as calculated by both this court and the Court of Appeals has expired. The motion is without basis. There remain 28 days to commence trial.
Mortensen timely appealed. He argued that the speedy trial clock should have resumed running on the date this court denied his petition for further review, not the date the district court entered judgment on the Court of Appeals' mandate. Accordingly, Mortensen based all of his speedy trial calculations upon the date of December 14, 2011, not January 17, 2012. He calculated that with an April 11 trial date, the State would have brought him to trial after 118 days and that it had only 112 days to do so under the Court of Appeals' previous decision.
The Court of Appeals rejected Mortensen's argument as “clearly without merit and contrary to Nebraska law.” State v. Mortensen, No. A–12–454, 2013 WL 2106665 at *2 (Neb.App. Apr. 23, 2013) (). It determined that the speedy trial clock began running again when the district court took action upon the Court of Appeals' mandate and that, consequently, the State still had 28 days to bring Mortensen to trial at the time Mortensen filed his second motion to discharge. The Court of Appeals held that the district court properly overruled Mortensen's motion to discharge.
On appeal, the State asked the Court of Appeals to exclude from the speedy trial clock the delay caused by Mortensen's allegedly frivolous motion to discharge. It argued that Mortensen's repeated, frivolous motions to discharge prejudiced the State and constituted good cause to exclude additional time from the statutory speedy trial clock under Neb.Rev.Stat. § 29–1207(4)(f) (Cum.Supp.2012). The Court of Appeals concluded that the State should have raised this argument in a cross-appeal and declined to consider whether additional days should be excluded from the speedy trial clock.
The State moved for further review, claiming that the Court of Appeals' decision promoted abuse of the statutory speedy trial system by defendants. It argued that the Court of Appeals' opinion would Brief for appellee in support of petition for furtherreview at 5–6. We granted the State's petition for further review.
On further review, the State assigns that the Court of Appeals erred in its calculation of the days remaining on the speedy trial clock for the State to bring Mortensen to trial.
This case involves Mortensen's statutory right to a speedy trial, which is separate from his constitutional right to a speedy trial. See State v. Brooks, 285 Neb. 640, 828 N.W.2d 496 (2013). The statutory right to a speedy trial is set forth in § 29–1207 and Neb.Rev.Stat. § 29–1208 (Cum.Supp.2012). Brooks, supra. Under § 29–1207(1), “[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.” To calculate the deadline for trial under the speedy trial statutes, a court must exclude the day the State filed the information, count forward 6 months, back up 1 day, and then add any time excluded under § 29–1207(4). Brooks, supra.
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. § 29–1208.
The Legislature's stated purpose for enacting the speedy trial statutes was “[t]o effectuate the right of the accused to a speedy trial and the interest of the public in prompt disposition of criminal cases....” Neb.Rev.Stat. § 29–1205 (Reissue 2008). Thus, one important purpose of the speedy trial statutes is “protection of an accused from a criminal charge pending for an undue length of time.” State v. Lafler, 225 Neb. 362, 367, 405 N.W.2d 576, 580 (1987), abrogated on other grounds,State v. Oldfield, 236 Neb. 433, 461 N.W.2d 554 (1990). In addition to facilitating the rights of defendants, speedy trial statutes also serve public interests. See State v. Sumstine, 239 Neb. 707, 478 N.W.2d 240 (1991). By enactment of the statutes in question, the Legislature has recognized the social desirability of bringing the accused to trial at an early date. See State v. Alvarez, 189 Neb. 281, 202 N.W.2d 604 (1972).
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