State v. Space, S-21-837.

• Docket Number: S-21-837.
• Decision Date: 16 September 2022
• Citation: 312 Neb. 456,980 N.W.2d 1
• Parties: STATE of Nebraska, appellant, v. Tracy L. SPACE, appellee.
• Court: Nebraska Supreme Court

312 Neb. 456

980 N.W.2d 1

STATE of Nebraska, appellant,

v.Tracy L. SPACE, appellee.

No. S-21-837.

Supreme Court of Nebraska.

Filed September 16, 2022

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."

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.

BACKGROUND

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:

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.

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, 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 continuance granted at the request or with the consent of the defendant — or of his or her counsel is what the State's relying on here, Your Honor.

....

So when the Court sets that date and the Court asks [defense counsel] if that's okay, I don't know that it would be appropriate for the State at that point to try to overrule defense counsel in picking that particular date because perhaps there were strategic reasons she would want to have it on [September] 20th....

Regardless of the subjective reasons for why [defense counsel] said [September 20] would work, the objective fact is that the period of time from July 22nd through September 20th, in the State's view, was a mutually agreed upon trial date by and through defense counsel ... with the consent of defense counsel; and therefore, under [§] 29-1207(4)(b), an excludable period up through September 20th, meaning, then, that the motion for discharge was filed in a time period that the speedy trial clock had not run. So the motion for discharge in the State's view should be overruled, Judge.

The court took the matter under advisement.

Thereafter, the court entered an order granting Space's motion for absolute discharge. It found the 6-month speedy trial period had run on September 6, 2021, and it expressly rejected the State's argument that by agreeing to the September 20 trial date, Space had consented to a "continuance" of trial. It reasoned:

[T]he cases [the State] referenced all involved requests for a continuance, as opposed to initial trial settings. See State v. Curry , 18 Neb. App. 284, 790 N.W.2d 441 (2010) ; State v. Turner , 252 Neb. 620, 564 N.W.2d 231 (1997). Moreover, the Nebraska Supreme Court addressed this issue more specifically in State v. Alvarez , 189 Neb. 281, 291-92, 202 N.W.2d 604, 610 (1972), wherein it concluded that the "failure by a defendant to demand a trial within the time he is required to be brought to trial ... or to object at the time trial date is set does not constitute a waiver of his rights[.]" The Court further noted that "[p]revious holdings of this court that failure of the accused to demand trial constitutes a waiver of the statutory right are overruled[.]" Id. (citing Barker v. Wingo , 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) ). While the Court further noted that the defendant's inaction may be considered along with other circumstances when determining whether "good cause" exists, it cannot alone constitute good cause. Id. No additional evidence of "good cause" was offered in this matter.

Presumably because the motion for absolute discharge was granted on statutory grounds, the court's order did not address Space's constitutional speedy trial claim. The State was granted leave to docket this exception proceeding pursuant to Neb. Rev. Stat. § 29-2315.01 (Cum. Supp. 2020). We moved the matter to our docket on our own motion.

ASSIGNMENT OF ERROR

The State assigns that the district court erred in granting Space's motion for absolute discharge.

STANDARD OF REVIEW

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 But 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

ANALYSIS

STATUTORY SPEEDY TRIAL PRINCIPLES

The sole question presented is whether the district court erred in granting Space's motion for absolute discharge on statutory speedy trial grounds. The statutory right to a speedy trial is set out in § 29-1207 and Neb. Rev. Stat. § 29-1208 (Reissue 2016).⁴ Under these statutes, criminal defendants must be brought to trial by a 6-month deadline, but certain periods of...