State v. Petty, S-03-1046.
| Decision Date | 21 January 2005 |
| Docket Number | No. S-03-1046.,S-03-1046. |
| Parties | STATE of Nebraska, appellee, v. Robert M. PETTY, appellant. |
| Court | Nebraska Supreme Court |
Thomas C. Riley, Douglas County Public Defender, and Richard A. Kubat for appellant.
Jon Bruning, Attorney General, and James D. Smith, Lincoln, for appellee.
Robert M. Petty was charged in Douglas County Court with driving under the influence (third offense), driving under suspension, and driving without lights. The county court denied Petty's motion to discharge on speedy trial grounds. The district court for Douglas County affirmed the denial, and Petty appealed to the Nebraska Court of Appeals. The Court of Appeals affirmed. State v. Petty, No. A-03-1046, 2004 WL 1724900 (Neb.App. Aug.3, 2004) (). We granted the State's petition for further review. Although we disagree with the reasoning of the Court of Appeals with respect to time excludable due to Petty's failures to appear, we conclude that the Court of Appeals did not err in affirming the denial of Petty's motion to discharge. Accordingly, we affirm as modified.
The State filed complaints in Douglas County Court on July 17, 2002, charging Petty with driving under the influence (third offense), driving under suspension, and driving without lights. Petty pled not guilty, and the case progressed, with the county court setting a trial date of September 10. Petty failed to appear on September 10. The court issued a capias for Petty's arrest. Petty was arrested on February 2, 2003, and posted bond on February 4. Petty appeared in court on February 24 and pled not guilty to an additional charge of failing to appear.
On March 6, 2003, the court scheduled Petty's trial for the jury term beginning April 1. The court also ordered Petty to appear for a pretrial hearing on March 14. Petty failed to appear at the March 14 pretrial hearing. Petty appeared at a hearing on March 20, where he waived his right to a jury trial and the court set a bench trial for July 14.
On July 2, 2003, Petty filed a motion to discharge, claiming he had been denied a speedy trial. On the same day, Petty filed a motion to suppress. Following a hearing on July 10, the county court denied Petty's motion to discharge. The county court noted Petty's failures to appear and, citing State v. Letscher, 234 Neb. 858, 452 N.W.2d 767 (1990), found that such absences tolled the time for speedy trial. Before the county court could consider the motion to suppress, Petty appealed the denial of the motion to discharge to the district court. On September 9, the district court affirmed the denial of Petty's motion to discharge.
Petty appealed to the Court of Appeals. Petty claimed he had been denied his 6-month statutory right to a speedy trial and argued that there were only two excludable time periods: (1) the period of 147 days from September 10, 2002, when he first failed to appear for trial, until February 4, 2003, when he posted bond; and (2) the period of 6 days from March 14, when he failed to appear for the pretrial hearing, until March 20, when he next appeared in court. Petty asserted that by excluding these 153 days, the latest date he could have been brought to trial was June 19, 2003.
In analyzing Petty's appeal, the Court of Appeals cited to State v. Rhoads, 11 Neb.App. 731, 734, 660 N.W.2d 181, 184 (2003), for the proposition that "[w]hen a defendant is aware of the scheduled trial date and fails to appear on that date, the Nebraska speedy trial statute is tolled until such time as the defendant either willingly or unwillingly appears again in court." (Emphasis omitted.) The Court of Appeals noted that there was no indication in the record that Petty appeared in court when he posted bond on February 4, 2003, and the Court of Appeals therefore determined that the period commencing September 10, 2002, when Petty failed to appear for trial, should be deemed to have ended not on February 4, 2003, but on February 24 when Petty in fact appeared in court. The Court of Appeals determined that these additional 20 days extended the time for trial until July 9 and that the time was tolled again when Petty filed his motion to discharge and his motion to suppress on July 2. The Court of Appeals therefore concluded that Petty had filed his motion to discharge prematurely.
Although this conclusion could have resolved the appeal as it was being assessed by the Court of Appeals, the Court of Appeals proceeded to address the State's argument that there was additional excludable time. As a general matter, the State urged that the time between Petty's reappearance and the next available trial date should be excluded, because this period resulted from Petty's absence or unavailability. See Neb.Rev.Stat. § 29-1207(4)(d) (Reissue 1995). The State pointed to one such excludable period which ran from February 24, 2003, when Petty reappeared in court until April 1, the next available trial date. By excluding this period as urged by the State, the time for trial would have been extended until August 7. Although the State did not explicitly make the argument in its brief, the Court of Appeals noted that under the State's reasoning, a similar argument could be made for the period from March 20, when Petty appeared in court after failing to appear at the March 14 hearing, until the July 14 date which was set for a bench trial.
In support of its position, the State relied on State v. Letscher, 234 Neb. 858, 861, 452 N.W.2d 767, 769 (1990), in which this court stated that "when a defendant has commenced a period of delay due to his or her absence or unavailability, the period of time from the defendant's later availability to the next reasonably available trial date is excludable." The Court of Appeals rejected the State's argument.
Relying on its decision in Rhoads, supra, in which the Court of Appeals had stated that the State had the burden under § 29-1207(4)(f) to show good cause for delay in setting the trial date after a defendant reappears, the Court of Appeals concluded that the State had the burden in this case to establish that there was good cause for setting Petty's trial on April 1, 2003. More specifically, the Court of Appeals determined that the State had presented no evidence that April 1 was the next reasonably available trial date following Petty's reappearance on February 24. The Court of Appeals noted that in Letscher, the court bailiff had testified at the hearing on the motion to discharge regarding the next available date for jury trial following the defendant's reappearance. Although the Court of Appeals rejected the State's argument that the first excludable period should have extended until April 1, it affirmed the denial of the motion to discharge because of its earlier conclusion that the motion was filed prematurely.
The State petitioned for further review of the Court of Appeals' decision and assigned error to the Court of Appeals' reasoning that additional time was not excludable. We granted the State's petition for further review.
The State asserts that the Court of Appeals erred in (1) imposing a good cause burden on the State in order to exclude from the speedy trial calculation the time from the defendant's reappearance until the next reasonable trial date and (2) failing to hold that the speedy trial period was tolled from Petty's first failure to appear on September 10, 2002, until the rescheduled trial date of July 14, 2003.
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. Covey, 267 Neb. 210, 673 N.W.2d 208 (2004).
To the extent an appeal calls for statutory interpretation or presents questions of law, an appellate court must reach an independent conclusion irrespective of the determination made by the court below. Id.
At issue in this appeal are the provisions of the statutory 6-month speedy trial act found at § 29-1207. Particularly relevant are the provisions of § 29-1207(4)(d) and (f) relating to certain excludable periods. The statute provides:
On further review, the State claims that the Court of Appeals erred in imposing a burden on the State which required it to prove good cause in order to exclude time after Petty reappeared in court until the trial date set by the court following Petty's reappearance. In sum, the State asserts that the language of § 29-1207(4)(d) which excludes the "period of delay resulting from the absence or unavailability of the defendant" requires that the period of time from the defendant's reappearance until the next reasonably available trial date be excluded. The State further asserts that the Court of Appeals erred in relying on the "good cause" language found in § 29-1207(4)(f) which excludes "[o]ther periods of delay not specifically enumerated herein, but only if the court finds that they are for good cause" when it required the State to prove that the time between Petty's reappearance and the trial date should have been excluded. We agree with the State's reading of § 29-1207(4)(d), and we conclude that under the plain language of § 29-1207(4)(d), the period of time from the defendant's reappearance until the next reasonably available trial date is ordinarily excludable pursuant to § 29-1207(4)(d) as "delay resulting from the absence or unavailability of the defendant" and that, therefore, the Court of...
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