State v. Vela-Montes

• Citation: 807 N.W.2d 544,19 Neb.App. 378
• Decision Date: 13 December 2011
• Docket Number: No. A–10–1043.,A–10–1043.
• Parties: STATE of Nebraska, appellee, v. Victor VELA–MONTES, appellant.
• Court: Court of Appeals of Nebraska

19 Neb.App. 378

807 N.W.2d 544

STATE of Nebraska, appellee,

v.Victor VELA–MONTES, appellant.

No. A–10–1043.

Court of Appeals of Nebraska.

Dec. 13, 2011.

Syllabus by the Court

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. Statutory interpretation presents a question of law, for which an appellate court has an obligation to reach an independent conclusion irrespective of the determination made by the court below.

3. Motions for Continuance: Appeal and Error. A motion for continuance is addressed to the discretion of the court, and in the absence of a showing of an abuse of discretion, a ruling on a motion for continuance will not be disturbed on appeal.

4. Motions for Continuance. Neb.Rev.Stat. § 29–1206 (Reissue 2008) states that applications for continuance shall be made in accordance with Neb.Rev.Stat. § 25–1148 (Reissue 2008) and that in criminal cases, the court shall grant a continuance only upon a showing of good cause and only for so long as is necessary, taking into account not only the request or consent of the prosecution or defense, but also the public interest in prompt disposition of the case.

5. Speedy Trial. Neb.Rev.Stat. § 29–1208 (Reissue 2008) provides that a defendant who is not brought to trial before the running of the time for trial, as extended by excludable periods, shall be entitled to absolute discharge.

6. Speedy Trial: Proof. The burden of proof is upon the State to show that one or more of the excluded time periods under Neb.Rev.Stat. § 29–1207(4) (Reissue 2008) are applicable when the defendant is not tried within 6 months.

7. Speedy Trial: Proof. To overcome a defendant's motion for discharge on speedy trial grounds, the State must prove the existence of an excludable period by a preponderance of the evidence.

8. Motions for Continuance: Appeal and Error. Noncompliance with the mandates of Neb.Rev.Stat. § 25–1148 (Reissue 2008) is merely a factor to be considered in determining whether the trial court abused its discretion in ruling on a motion for continuance.

9. Evidence: Waiver. Oral statements of counsel should not be received as evidence, although objection to their reception may be waived.

10. Motions for Continuance: Prosecuting Attorneys: Waiver: Appeal and Error. It is not error for a trial court to grant a continuance when the factual basis for granting the motion is wholly or largely dependent upon the oral statements of the prosecutor and the defense does not object to the procedure.

11. Motions for Continuance. The plain requirements of Neb.Rev.Stat. § 25–1148 (Reissue 2008) are not difficult to comply with, especially when the defendant unequivocally objects to the State's failure to do so.

12. Motions for Continuance. The State's failure to comply with the dictates of Neb.Rev.Stat. § 25–1148 (Reissue 2008) deprives a defendant of a mere technical right.

13. Judgments: Words and Phrases: Appeal and Error. In the context of appealable orders, a substantial right is an essential legal right, not a mere technical right.

14. Criminal Law: Judgments: Appeal and Error. No judgment shall be set aside in any criminal case for error as to any matter of procedure if the appellate court, after an examination of the entire cause, considers that no substantial miscarriage of justice has actually occurred.

15. Affidavits: Testimony. The right to have a motion supported by affidavits or sworn testimony is a mere technical right, not an essential legal right.

16. Motions for Continuance: Records: Appeal and Error. In determining whether a trial court has abused its discretion in ruling on a continuance, it is proper for the reviewing court to look at the entire record in the case.

17. Evidence: Motions to Dismiss: Appeal and Error. In numerous instances, the Nebraska appellate courts have considered evidence relevant to earlier proceedings where such evidence was adduced at the time of a hearing on a motion for discharge.

18. Motions for Continuance: Appeal and Error. An appellant has suffered no loss of a substantial right by the grant of the State's motion for continuance when the State did not support the motion with an affidavit or sworn testimony.

Daniel R. Stockmann, of Dunn & Stockmann, L.L.O., Omaha, for appellant.

Jon Bruning, Attorney General, and Kimberly A. Klein, Lincoln, for appellee.

IRWIN, CASSEL, and PIRTLE, Judges.

PER CURIAM.

INTRODUCTION

Victor Vela–Montes appeals from an order denying his motion for absolute discharge on speedy trial grounds. At the hearing on his motion for discharge, the district court received evidence precisely confirming the prosecutor's representations made at the time the State obtained a continuance. Vela–Montes argues that because the evidence was not produced at the earlier hearing in the form of an affidavit or live witness, the court erred in overruling his motion for discharge. We conclude that the receipt of this evidence did not affect a substantial right and that the court did not abuse its discretion in granting the motion to continue. Accordingly, the speedy trial clock had not expired and the district court properly denied Vela–Montes' motion for discharge.

BACKGROUND

On February 26, 2009, the State charged Vela–Montes with two counts of first degree sexual assault. On November 2, Vela–Montes filed a motion for continuance of the trial scheduled to begin on November 4. The court granted this motion and set trial for November 30.

On November 23, 2009, the State filed a motion to continue the trial. The State did not submit testimony, exhibits, or affidavits regarding the basis for the continuance, and Vela–Montes did not agree or stipulate to a continuance. The prosecutor made an unsworn statement to the court that one of the victims in the case was unavailable to testify on the date the case had been set for trial. The prosecutor stated:

I am asking for a continuance of the trial date. One of the victims on the case ... has contacted me since I gave her the date of November 30. She indicates to me that she's beginning classes full-time on November 30 and won't be available to testify that week. She has to take these classes as a requirement, a prerequisite, I guess, to get into what she wants to do as it pertains to the Army. And these classes run November 30 to February 25; however, she did indicate to me that she would be available in February and March to testify so that's the reason I'm asking for this continuance.

Defense counsel objected to the motion and argued that “the State is not even asking for a continuance in the proper manner. The statute for requesting a continuance requires an affidavit be submitted in support of the motion to continue.” Defense counsel further argued to the court:

I think the reason at least partially the statute requires an affidavit is that there needs to be some sort of evidence submitted, I think, by the State as to why [it] need[s] a continuance, not just an argument. [The State has not] submitted any evidence, affidavit or otherwise, as to why [it] need[s] the continuance or why there's been good cause shown to justify the continuance.

Over objection by Vela–Montes to both the method of the request and the continuance itself, the court sustained the motion and continued the trial to February 1, 2010.

On January 19, 2010, Vela–Montes filed a motion for discharge arguing that the 6–month statutory speedy trial time under Neb.Rev.Stat. §§ 29–1207 and 29–1208 (Reissue 2008) had expired and that his constitutional right to a speedy trial had been violated.

On January 25, 2010, the district court held a hearing on Vela–Montes' motion for discharge. The State presented testimony from the victim whose unavailability had prompted the State's November 2009 motion to continue. The victim testified that prior to the State's filing the motion to continue, she had informed the State that she would be unavailable to testify on the previously set trial date because of her class schedule and that she would not be available to testify until February 2010. Vela–Montes objected to the testimony of the victim, arguing that while such evidence may have been relevant in connection with the earlier hearing on the State's motion to continue, it was not relevant now in connection with the motion for discharge. The court overruled Vela–Montes' objection and denied his motion for discharge. On January 27, the court entered an order denying the motion for discharge.

Vela–Montes filed his first appeal, in case No. A–10–106, on January 27, 2010. We subsequently remanded the case back to the district court with directions that the court make specific findings of each period of delay excludable under § 29–1207(4)(a) to (f), which the court had failed to do in its prior order.

On October 13, 2010, the district court entered a supplemental order pursuant to this court's mandate. In this supplemental order, the district court found that the pretrial motions of Vela–Montes added a total of 132 days to his speedy trial clock and that the State's motion to continue trial for good cause to February 1, 2010, added an additional 63 days. Therefore, according to the district court, a total of 195 days were to be added to Vela–Montes' speedy trial clock.

For the sake of clarity, we note at this point that the district court improperly calculated the number of excludable days on the prior remand, and the State agrees. It appears that the trial court did not recognize that an excludable period under § 29–1207 commences on the day immediately after the filing of a defendant's pretrial motion. See State v. Williams, 277 Neb. 133, 761 N.W.2d 514 (2009). The district court incorrectly included the day of the filing of each of the pretrial motions, thereby excluding 1 day too many for...