State v. Steele

• Decision Date: 30 March 2001
• Docket Number: No. S-00-477.,S-00-477.
• Citation: 624 N.W.2d 1,261 Neb. 541
• Court: Nebraska Supreme Court
• Parties: STATE of Nebraska, Appellee v. David C. STEELE, Appellant.

624 N.W.2d 1

261 Neb. 541

STATE of Nebraska, Appellee v. David C. STEELE, Appellant.

No. S-00-477.

Supreme Court of Nebraska.

March 30, 2001.

Dennis R. Keefe, Lancaster County Public Defender, and Robert G. Hays, Lincoln, for appellant.

Don Stenberg, Attorney General, and Kimberly A. Klein, Lincoln, for appellee.

HENDRY, C.J., and WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

CONNOLLY, J.

David C. Steele appeals the district court's order overruling his motion to discharge on statutory and constitutional speedy trial grounds. Steele was charged with felony criminal mischief and released on bond. Prior to trial, scheduled in Lancaster County District Court, the Lancaster County Attorney filed a fugitive complaint against Steele. The complaint alleged that Steele was a fugitive from justice in Colorado. Steele was taken into custody and waived extradition to Colorado under the Uniform Criminal Extradition Act, Neb.Rev.Stat. §§ 29-729 to 29-758 (Reissue 1995) (Extradition Act). Steele was not returned to Nebraska until after the trial deadline imposed by Neb.Rev.Stat. § 29-1207 (Reissue 1995), a Nebraska speedy trial statute.

This appeal presents interrelated issues: (1) Whether § 29-1207 or the Agreement on Detainers (Agreement), found in Nebraska at Neb.Rev.Stat. § 29-759 (Reissue 1995), controls a defendant's statutory right to a speedy trial when he or she is extradited after an information has been filed and trial has been set and (2) whether the time period during which a defendant is voluntarily surrendered to another jurisdiction is chargeable to the State or to the defendant under § 29-1207(4)(d). We conclude that when a defendant under the State's control is knowingly extradited by the prosecuting attorney to another jurisdiction after an information or indictment has been filed against him or her, the defendant's statutory right to a speedy trial is governed by § 29-1207 and the trial deadline is not tolled under § 29-1207(4)(d). Accordingly, we reverse.

I. BACKGROUND

Steele was charged by information in Lancaster County District Court on April 16, 1999, with felony criminal mischief. He pled not guilty at his arraignment, trial was set for June 21, and he was released on bond. On April 16, Steele filed a motion seeking discovery, which was granted on May 13.

On May 20, 1999, the Lancaster County Attorney filed a fugitive complaint against Steele, alleging that he was a fugitive from Fremont County, Colorado. Colorado had issued a warrant against Steele after he had failed to appear for charges of reckless driving and driving with a revoked license, but had not lodged a detainer against him in Nebraska. Steele was taken into custody, and on May 24, he waived extradition and was returned to Colorado pursuant to the Extradition Act. The prosecuting attorney did not lodge a detainer against Steele at that time.

Steele's case came up for docket call on July 13, 1999, for the jury term scheduled to commence July 26. Defense counsel informed the court that Steele was incarcerated in Colorado until December 24, 1999, and would need transportation back to Nebraska for trial. The State asked the court to issue a bench warrant against Steele so that he could be extradited back to Nebraska, and the motion was granted. However, by the July 26 trial date, the State had not started the extradition process because the prosecuting attorney claimed he did not know the location in Colorado where Steele was being held. The case was continued to July 28. On July 28, the case was taken off the trial list because the State could not obtain Steele's presence. On August 5, a bench warrant was issued for Steele.

On August 31, 1999, the case again came up for docket call, but Steele's presence had not been obtained, although the prosecuting attorney stated that he believed that steps had been taken to locate him. Trial was set for September 13. On September 9, the prosecuting authorities lodged a detainer against Steele in Colorado. The record does not reflect what happened on September 13, but a trial was not held. On September 30, another docket call was held. The State informed the court that it had lodged a detainer in Colorado, asking for Steele's return after he had completed his sentence. On October 18, the court removed the case from the trial list over Steele's attorney's objection. At each docket call, defense counsel informed the court that the case was ready for trial but that Steele had not been extradited.

On November 2, 1999, Steele waived extradition, agreeing to return to Nebraska. He was picked up by the Lancaster County Sheriff's Department on or about November 29. On December 2, Steele filed a motion to discharge based on speedy trial grounds.

The district court found that Steele had voluntarily waived extradition and had failed to take any action to make himself available to appear in Nebraska, other than to have his attorney appear in court and claim that the case was ready for trial. The court therefore found that Steele was unavailable from the time of his voluntary extradition from Nebraska to his voluntary extradition from Colorado, and the court excluded this period from the 6 month trial deadline under § 29-1207. The district court obviously considered § 29-1207 to control Steele's statutory speedy trial claim. The State argues on appeal, however, that the speedy trial provisions of the Agreement are controlling.

II. ASSIGNMENTS OF ERROR

Steele assigns as error, restated, the district court's overruling of his motion to discharge (1) for statutory speedy trial violations and (2) constitutional speedy trial violations.

III. STANDARD OF REVIEW

Ordinarily, 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. Baird, 259 Neb. 245, 609 N.W.2d 349 (2000); State v. Tucker, 259 Neb. 225, 609 N.W.2d 306 (2000).

However, 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. State v. Tucker, supra.

IV. ANALYSIS

1. APPLICABLE STATUTES

Steele contends his statutory trial deadline is governed by Nebraska's speedy trial statutes, Neb.Rev.Stat. §§ 29-1205 to 29-1209 (Reissue 1995). The State contends that the speedy trial provisions of the Agreement are controlling. If the State is correct, then Steele's claim that his statutory right to a speedy trial has been violated is without merit.

Section 29-1207 provides that every person indicted or informed against for any offense shall be brought to trial within 6 months. State v. Boslau, 258 Neb. 39, 601 N.W.2d 769 (1999); State v. White, 257 Neb. 943, 601 N.W.2d 731 (1999).

The Agreement, on the other hand,

provides the procedure whereby persons who are imprisoned in one state or by the United States, and who are also charged with crimes in another state or by the United States, can be tried expeditiously for the pending charges while they are serving their current sentences, in order to avoid prolonged interference with rehabilitation programs.

State v. Williams, 253 Neb. 619, 624, 573 N.W.2d 106, 110 (1997), citing § 29-759, article I. See, also, United States v. Mauro, 436 U.S. 340, 98 S.Ct. 1834, 56 L.Ed.2d 329 (1978) (delineating disadvantages prisoners sustain as result of having detainers lodged against them).

There is no question that the Agreement controls a defendant's speedy trial rights when he or she is already incarcerated in another state or in a federal facility before an information is filed against the defendant in Nebraska. See, e.g., State v. Reynolds, 218 Neb. 753, 359 N.W.2d 93 (1984) (analyzing defendant's statutory right to speedy trial under only Agreement where defendant was incarcerated by federal authorities in California before he could be arrested in Nebraska). Which statutory scheme controls when the general speedy trial statutes have been triggered and the defendant is then extradited to another state, however, is an issue of first impression in Nebraska.

The State argues that the statutory scheme of the Agreement, § 29-759, is remarkably similar to the procedural requirements for obtaining a final disposition of outstanding charges under Nebraska's disposition of untried charges statutes, which govern the resolution of pending charges against in-state inmates. See Neb.Rev.Stat. §§ 29-3801 to 29-3809 (Reissue 1995). The State argues that there is no reason to distinguish between in-state and out-of-state inmates when the procedural requirements for obtaining a speedy trial are identical. Thus, the State argues that by analogizing to State v. Tucker, 259 Neb. 225, 609 N.W.2d 306 (2000), this court should find that Steele's speedy trial rights are governed by the Agreement.

In Tucker, the defendant was arrested and convicted on charges in Jefferson County, Nebraska, while he was released on bond on charges pending in Lancaster County, Nebraska. The Lancaster County Attorney obtained his presence for trial through a writ of habeas corpus ad prosequendum, but not before the speedy trial deadline under § 29-1207 had expired. We held that because the defendant was in the custody of the Nebraska Department of Correctional Services at the time he filed his motion, his statutory speedy trial claim was governed by §§ 29-3801 to 29-3809. State v. Tucker, supra.

When dealing with in-state prisoners, the trial deadline under § 29-3805 can be triggered only by the prosecutor's receipt of the required certificate from the Director of Correctional Services. The director is obligated to issue that certificate upon request by the prisoner under § 29-3803, or upon request by the prosecutor under § 29-3804 if the prosecutor has lodged a detainer against the prisoner. The prosecutor had not lodged a detainer in Tucker, but ...