State v. Space, S-21-837

CourtSupreme Court of Nebraska
Writing for the CourtStacy, J.
Citation312 Neb. 456
PartiesState of Nebraska, appellant. v. Tracy L. Space, appellee.
Docket NumberS-21-837
Decision Date16 September 2022

312 Neb. 456

State of Nebraska, appellant.
Tracy L. Space, appellee.

No. S-21-837

Supreme Court of Nebraska

September 16, 2022

1. Judgments: Speedy Trial: Appeal and Error. Generally, 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. Statutory interpretation presents a question of law, for which an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the court below.

3. Speedy Trial. Under Nebraska's speedy trial statutes, criminal defendants must be brought to trial by a 6-month deadline, but certain periods of delay are excluded and thus can extend the deadline.

4. __. The primary burden is on the State to bring an accused person to trial within the time provided by law.

5. __ . If a defendant is not brought to trial by the 6-month speedy trial deadline, as extended by any excluded periods, he or she is entitled to absolute discharge from the offense charged and for any other offense required by law to be joined with that offense.

6. Speedy Trial: Proof. When a motion for absolute discharge is filed, the State bears the burden to show, by the greater weight of the evidence, that one or more of the excluded time periods under Neb. Rev. Stat. § 29-1207(4) (Reissue 2016) are applicable.

7. Speedy Trial. To calculate the time for speedy trial purposes, a court must exclude the day the complaint was filed, count forward 6 months, back up 1 day, and then add any time excluded under Neb. Rev. Stat. § 29-1207(4) (Reissue 2016) to determine the last day the defendant can be tried.

8. Statutes. Statutory interpretation begins with the text, and the text is to be given its plain and ordinary meaning. A court will not read meaning


[312 Neb. 457] into a statute that is not warranted by the legislative language or read anything plain, direct, or unambiguous out of a statute.

9. Statutes: Intent. When interpreting a statute, a court must give effect, if possible, to all the several parts of a statute and no sentence, clause, or word should be rejected as meaningless or superfluous if it can be avoided.

10. Words and Phrases. A legal term of art is a word or phrase having a specific, precise meaning in a given specialty apart from its general meaning in ordinary contexts.

11. Statutes: Words and Phrases. When legal terms of art are used in statutes, they are to be construed according to their term of art meaning.

12. Speedy Trial: Words and Phrases. The term "continuance," as used in Neb. Rev. Stat. § 29-1207(4)(b) (Reissue 2016), refers to the circumstance where a court proceeding set for one date is postponed to a future date.

13. Speedy Trial. The text of Neb. Rev. Stat. § 29-1207(4)(b) (Reissue 2016) plainly requires that a "continuance" must be granted at the request or with the consent of the defendant or his or her counsel, before the resulting period of delay is excludable.

14. Criminal Law: Appeal and Error. Under the invited error doctrine, a defendant in a criminal case may not take advantage of an alleged error which the defendant invited the trial court to commit.

15. Criminal Law: Speedy Trial: Waiver. A criminal defendant's failure to demand a trial within the 6-month statutory speedy trial period, or to object to a trial date set beyond such period, does not constitute a waiver of his or her speedy trial rights.

Appeal from the District Court for Buffalo County: Ryan C. Carson, Judge. Exception overruled.

Shawn R. Eatherton, Buffalo County Attorney, and Kari R. Fisk for appellant.

Lydia Davis, Buffalo County Public Defender, for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

Stacy, J.

During a scheduling hearing in a felony criminal case, the district court proposed a trial date and asked defense counsel, "does that work?" to which counsel replied, "Yes, thank you."


[312 Neb. 458] The court then scheduled trial for that date. No one mentioned speedy trial during the scheduling hearing, but it is undisputed that the proposed trial date was more than 6 months after the date the information was filed.

Shortly before the scheduled trial date, the defendant moved for absolute discharge, asserting she had not been brought to trial before the running of the 6-month speedy trial period under Neb. Rev. Stat. § 29-1207 (Reissue 2016). The district court granted absolute discharge, and the State filed this exception proceeding.

The State's primary argument is that by agreeing to an initial trial date that was outside the 6-month statutory speedy trial period, the defendant consented to an excludable "period of delay resulting from a continuance granted" within the meaning of § 29-1207(4)(b). Alternatively, the State argues the defendant "invit[ed] the Court to commit error in scheduling"[1]and should not have been allowed to rely on such error to obtain absolute discharge. Finding no merit to the State's arguments, we overrule the exception.


In a two-count information filed on March 5, 2021, Tracy L. Space was charged with aggravated driving under the influence, third offense (a Class IIIA felony), and refusal to submit to a preliminary breath test (a Class V misdemeanor). On March 9, Space filed a motion for discovery, which the court granted in an order entered the following day.

On March 25, 2021, the court entered a progression order setting arraignment for May 24, and a "final plea hearing" for July 22. The progression order stated that "[a]t the conclusion of the final plea hearing . . . the Court will schedule trial." Before the scheduled arraignment on May 24, Space filed a written waiver of arraignment and entered a plea of not guilty.

All parties appeared for the final plea hearing on July 22, 2021, during which the following exchange took place:

[312 Neb. 459] THE COURT: . . . We are set for final plea/pretrial.
[Defense counsel], what is the status?
[Defense counsel:] She is asking - she's standing on her not guilty plea, Your Honor.
THE COURT: September 20, 2021, for jury trial; does that work?
[Defense counsel:] Yes. Thank you.
THE COURT: We'll set the matter also for final status hearing the Friday before, September 17th at 11:30 a.m. Does that also work?
[Defense counsel:] Yes. Thank you.
THE COURT: Ms. Space, we're going to set your matter for jury trial on September 20, 2021, at 9 a.m., and also for a final status hearing the Friday before, September 17th at 11:30 a.m. It's important that you be here on both times; do you agree to do that?
DEFENDANT: Yes, Your Honor.
THE COURT: [Defense counsel], I'll ask that you write those dates and times down for Ms. Space so she doesn't forget.
Ms. Space, you need to understand that today was the deadline for discovery and also the deadline to [accept any] plea offers that may be made by the State. Absent a showing of good cause, the matter will proceed to trial at your request; do you understand that?
DEFENDANT: Yes, Your Honor.
THE COURT: The Court will allow you to remain out on your current bond, subject to all the terms and conditions; do you understand?
DEFENDANT: Yes, Your Honor.
THE COURT: And do you have any questions for me?
DEFENDANT: No, Your Honor.
THE COURT: [Defense counsel], anything else?
[Defense counsel:] No. Thank you.
THE COURT: [Counsel for the State]?
[Counsel for the State:] No, Your Honor.

[312 Neb. 460] The issue of speedy trial was not raised or discussed when the trial date was selected, nor at any other point during the final plea hearing. After the hearing, the court entered an order, styled as a journal entry, memorializing the dates set for the final status hearing and trial.

On September 13, 2021, Space filed a motion for absolute discharge, asserting a violation of both her statutory and constitutional speedy trial rights. At the hearing on Space's motion, the court took judicial notice of the information, the progression order, Space's written not guilty plea, the journal entry memorializing the trial date, and the remainder of the court file. The State offered a transcript of the July 22 hearing into evidence, which the court received without objection.

The court then gave counsel an opportunity to present argument, beginning with the defense. Defense counsel argued that Space was entitled to absolute discharge because the State failed to bring her to trial within 6 months of the date the information was filed and because she had not waived her right to a speedy trial. Anticipating the State's argument, defense counsel urged:

[I]t is improper ... to allege that some type of responsibility was on the defendant because that's simply not the case. It's not the defendant's burden to notify the Court of the speedy trial date, and quite frankly, it's not the Court's burden either. According to the law, the duty is on the county attorney, it's on the State, to bring a person to trial, again, within six months of the filing of the trial information.
... I would remind the Court that at no time in this case did Ms. Space ask for a continuance. At the final plea hearing she simply stood on her not guilty plea at that time. I would submit to the Court that that was not a request for a continuance because, quite frankly, it wasn't. There was no evidence that she wasn't immediately ready for trial.

The State urged the court to overrule the motion for discharge, reasoning that Space's acceptance of the September 20, 2021,


[312 Neb. 461] trial date rendered the period between the July 22 hearing and September 20 excludable under § 29-1207(4)(b). The State argued:

A period of delay resulting from a

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