Nebraska Revised Statutes
Chapter 29 - Criminal Procedure
29-1207 - Trial within six months; time; how computed.

29-1207. Trial within six months; time; how computed.
(1) Every person indicted or informed against for any offense shall be brought to trial within six months, and such time shall be computed as provided in this section.
(2) Such six-month period shall commence to run from the date the indictment is returned or the information filed, unless the offense is a misdemeanor offense involving intimate partners, as that term is defined in section 28-323, in which case the six-month period shall commence from the date the defendant is arrested on a complaint filed as part of a warrant for arrest.
(3) If a defendant is to be tried again following a mistrial, an order for a new trial, or an appeal or collateral attack, such period shall commence to run from the date of the mistrial, order granting a new trial, or the mandate on remand.
(4) The following periods shall be excluded in computing the time for trial:
(a) The period of delay resulting from other proceedings concerning the defendant, including, but not limited to, an examination and hearing on competency and the period during which he or she is incompetent to stand trial; the time from filing until final disposition of pretrial motions of the defendant, including motions to suppress evidence, motions to quash the indictment or information, demurrers and pleas in abatement, and motions for a change of venue; and the time consumed in the trial of other charges against the defendant;
(b) The period of delay resulting from a continuance granted at the request or with the consent of the defendant or his or her counsel. A defendant without counsel shall not be deemed to have consented to a continuance unless he or she has been advised by the court of his or her right to a speedy trial and the effect of his or her consent. A defendant who has sought and obtained a continuance which is indefinite has an affirmative duty to end the continuance by giving notice of request for trial or the court can end the continuance by setting a trial date. When the court ends an indefinite continuance by setting a trial date, the excludable period resulting from the indefinite continuance ends on the date for which trial commences. A defendant is deemed to have waived his or her right to speedy trial when the period of delay resulting from a continuance granted at the request of the defendant or his or her counsel extends the trial date beyond the statutory six-month period;
(c) The period of delay resulting from a continuance granted at the request of the prosecuting attorney, if:
(i) The continuance is granted because of the unavailability of evidence material to the state's case, when the prosecuting attorney has exercised due diligence to obtain such evidence and there are reasonable grounds to believe that such evidence will be available at the later date; or
(ii) The continuance is granted to allow the prosecuting attorney additional time to prepare the state's case and additional time is justified because of the exceptional circumstances of the case;
(d) The period of delay resulting from the absence or unavailability of the defendant;
(e) A reasonable period of delay when the defendant is joined for trial with a codefendant as to whom the time for trial has not run and there is good cause for not granting a severance. In all other cases, the defendant shall be granted a severance so that he or she may be tried within the time limits applicable to him or her; and
(f) Other periods of delay not specifically enumerated in this section, but only if the court finds that they are for good cause.
Source

Cross References

Annotations

1. General


2. Speedy trial, computation


3. Commencement of speedy trial period


4. Amended or refiled charges


5. Excludable periods, generally


6. Proceedings concerning the defendant


7. Defendant's pretrial motions or filings


8. Continuance at request of defendant or with defendant's consent


9. Continuance at request of prosecution


10. Interlocutory appeal


11. Good cause


12. Specific findings by court required


13. Trial not within six months


14. Waiver


15. Interplay with constitutional speedy trial requirement


16. Miscellaneous


1. General


This section requires discharge of a defendant whose case has not been tried within 6 months after the filing of the information. State v. Saylor, 294 Neb. 492, 883 N.W.2d 334 (2016).


The purpose of Nebraska's speedy trial act, sometimes called the "6-month rule," is protection of an accused from a criminal charge pending for an undue length of time. State v. Lafler, 225 Neb. 362, 405 N.W.2d 576 (1987).


Generally, an accused cannot take advantage of a delay in being brought to trial where his action or inaction was responsible for the delay. State v. Searles, 214 Neb. 849, 336 N.W.2d 571 (1983).


This section requires that every person indicted or informed against for any offense shall be brought to trial within 6 months, unless the 6 months are extended by any period to be excluded in computing the time for trial. State v. Fioramonti, 22 Neb. App. 52, 847 N.W.2d 95 (2014); State v. Schmader, 13 Neb. App. 321, 691 N.W.2d 559 (2005).


Under subsection (1) of this section, every person indicted or informed against for any offense shall be brought to trial within 6 months, unless the 6 months are extended by any period to be excluded in computing the time for trial. State v. Mortensen, 19 Neb. App. 220, 809 N.W.2d 793 (2011).


This section requires discharge of a defendant whose case has not been tried within 6 months after the filing of the information, unless the 6 months are extended by any period to be excluded in computing the time for trial. State v. Shipler, 17 Neb. App. 66, 758 N.W.2d 41 (2008).


This section requires that every person indicted or informed against for any offense shall be brought to trial within 6 months, unless the 6 months are extended by any period to be excluded in computing the time for trial. State v. Droz, 14 Neb. App. 32, 703 N.W.2d 637 (2005).


The purpose of the speedy trial act, sometimes called the "6-month rule," is protection of an accused from a criminal charge pending for an undue length of time. State v. Feldhacker, 11 Neb. App. 608, 657 N.W.2d 655 (2003).


2. Speedy trial, computation


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 subsection (4) of this section to determine the last day the defendant can be tried. State v. Chapman, 307 Neb. 443, 949 N.W.2d 490 (2020).


For speedy trial purposes, the calculation of excludable time for a continuance begins the day after the continuance is granted and includes the day on which the continuance ends. State v. Lovvorn, 303 Neb. 844, 932 N.W.2d 64 (2019).


This section does not impose a unitary speedy trial clock on all joined codefendants. The period of delay is determined by first calculating the defendant's speedy trial time absent the codefendant exclusion and then determining the number of days beyond that date that the joint trial is set to begin. State v. Beitel, 296 Neb. 781, 895 N.W.2d 710 (2017).


In calculating the number of excludable days resulting from an interlocutory appeal, for speedy trial purposes, the period to be excluded due to the appeal commences on and includes the date on which the defendant filed his or her notice of appeal. Where further proceedings are to be had following an interlocutory appeal, for speedy trial purposes, the period of time excludable due to the appeal concludes when the district court first reacquires jurisdiction over the case by taking action on the mandate of the appellate court. State v. Williams, 277 Neb. 133, 761 N.W.2d 514 (2009).


To determine the last day on which a defendant may be tried for speedy trial purposes, a court must exclude the day the information was filed, count forward 6 months, back up 1 day, and then add any time excluded under subsection (4) of this section. State v. Williams, 277 Neb. 133, 761 N.W.2d 514 (2009).


Once a mistrial is granted, the speedy trial clock is restarted. State v. Dockery, 273 Neb. 330, 729 N.W.2d 320 (2007).


For purposes of calculating the 6-month speedy trial act time period in a direct information case, the direct information should be deemed filed the day the order is entered finding probable cause or the day the defendant waives the preliminary hearing, and the speedy trial act calculations should be measured from either of these events. Pursuant to the Nebraska Supreme Court's case law interpreting the speedy trial act, the statutory 6-month speedy trial time period begins to run the day following the filing of the information, and in the case of a direct information, the day the information is filed for speedy trial act purposes is the day the district court finds probable cause or the day the defendant waives the preliminary hearing. State v. Boslau, 258 Neb. 39, 601 N.W.2d 769 (1999).


Where a retrial is ordered, it is the trial for the specific criminal offenses originally charged and other offenses required by law to be joined therewith that must begin within 6 months of the retrial order. The 6-month period is computed by moving forward 6 months, backing up 1 day, and then adding any excludable periods. State v. Blackson, 256 Neb. 104, 588 N.W.2d 827 (1999).


The six-month period within which an accused is to be brought to trial is computed by excluding the day of the filing of the information, and refers to a period of six calendar months, not 180 days. State v. Jones, 208 Neb. 641, 305 N.W.2d 355 (1981).


If an information is filed initially in district court, referred to as a "direct information," such filing is treated in the nature of a complaint until a preliminary hearing is held or waived. In the case of a direct information, the day the information is filed for speedy trial act purposes is the day the district court finds probable cause or the day the defendant waives the preliminary hearing. State v. Carrera, 25 Neb. App. 650, 911 N.W.2d 849 (2018).


To calculate the deadline for trial under the speedy trial statutes, a court must exclude the day the State filed the information, count forward 6 months, back up 1 day, and then add any time excluded under subsection (4) of this section. State v. Fioramonti, 22 Neb. App. 52, 847 N.W.2d 95 (2014).


To calculate the time for statutory speedy trial purposes, a court must exclude the day the information was filed, count forward 6 months, back up 1 day, and then add any excludable time to determine the last day the defendant can be tried. State v. Henshaw, 19 Neb. App. 663, 812 N.W.2d 913 (2012); State v. Curry, 18 Neb. App. 284, 790 N.W.2d 441 (2010); State v. Shipler, 17 Neb. App. 66, 758 N.W.2d 41 (2008); State v. Droz, 14 Neb. App. 32, 703 N.W.2d 637 (2005).


Where misdemeanor counts are filed with felony counts and it is clear that the State intends to try the misdemeanor and felony offenses together, the time that the misdemeanors and felonies were pending in county court is not tacked on for speedy trial purposes. State v. Timmerman, 12 Neb. App. 934, 687 N.W.2d 24 (2004).


Speedy trial time is calculated by excluding the date the information was filed, counting forward 6 calendar months, backing up 1 day, and then adding the excludable time periods to that date. State v. Feldhacker, 11 Neb. App. 608, 657 N.W.2d 655 (2003).


3. Commencement of speedy trial period


For cases commenced with a complaint in county court but thereafter bound over to district court, the 6-month statutory speedy trial period does not commence until the filing of the information in district court. State v. Hettle, 288 Neb. 288, 848 N.W.2d 582 (2014).


In cases commenced and tried in county court, the 6-month statutory period within which an accused must be brought to trial begins to run on the date the complaint is filed. State v. Hettle, 288 Neb. 288, 848 N.W.2d 582 (2014).


Pursuant to subsection (1) of this section, where a felony offense is involved, the 6-month speedy trial period commences to run from the date the indictment is returned or the information filed, and not from the time the complaint is filed. State v. Karch, 263 Neb. 230, 639 N.W.2d 118 (2002).


The 6-month period in which the trial must begin commences to run from the date the information is filed and not from the time the complaint is filed. State v. Trammell, 240 Neb. 724, 484 N.W.2d 263 (1992).


This section requires that every person charged with a criminal offense be brought to trial within six months. In cases commenced and tried in the county court, the six-month period begins to run on the date the complaint is filed in that court. State v. Johnson, 201 Neb. 322, 268 N.W.2d 85 (1978).


In felony cases, the six-month period runs from the date the indictment is returned or information filed, not from date complaint is filed in county court. State v. Costello, 199 Neb. 43, 256 N.W.2d 97 (1977).


A defendant's right to a speedy trial begins when he is indicted or informed against or arrested. State v. Spidell, 192 Neb. 42, 218 N.W.2d 431 (1974).


Where a felony offense is involved, the six-month period commences to run from the date the indictment is returned or the information filed. State v. Born, 190 Neb. 767, 212 N.W.2d 581 (1973).


The limitation for time of trial of criminal cases is six months from date indictment is returned or information filed. State v. Watkins, 190 Neb. 450, 209 N.W.2d 184 (1973).


For cases commenced with a complaint in county court but thereafter bound over to district court, the 6-month statutory speedy trial period does not commence until the filing of the information in district court. State v. Carrera, 25 Neb. App. 650, 911 N.W.2d 849 (2018).


Nebraska case law and the plain language of this section make it clear that the 6-month speedy trial period begins to run upon the filing of the information in district court. The time during which an underlying complaint is pending in county court before the defendant is bound over to district court is not counted. State v. Timmerman, 12 Neb. App. 934, 687 N.W.2d 24 (2004).


Where an information was filed directly in district court, the 6-month time period did not commence until a preliminary hearing was held and the defendant was bound over for trial. State v. Boslau, 8 Neb. App. 275, 593 N.W.2d 747 (1999).


4. Amended or refiled charges


The original charges have not been "abandoned" or "dismissed" when an amended complaint or information continues to make those charges, but additionally charges a different crime, and, therefore, the 6-month statutory speedy trial period continues to run as to the charges that have not changed, and a tacking-and-tolling analysis as to those charges is superfluous. State v. Hettle, 288 Neb. 288, 848 N.W.2d 582 (2014).


An amended complaint or information which charges a different crime, without charging the original crime, constitutes an abandonment of the first complaint or information and acts as a dismissal of the same; the time between the dismissal and refiling of the same or a similar charge is not includable in calculating the 6-month time period. State v. Karch, 263 Neb. 230, 639 N.W.2d 118 (2002).


The time between the dismissal and refiling of the same or a similar charge is not includable in calculating the 6-month time period set forth in this section. To avoid a defendant's absolute discharge from an offense charged, as dictated by section 29-1208, the State must prove by a preponderance of the evidence the existence of a period of time which is authorized by subsection (4) of this section to be excluded in computing the time for commencement of the defendant's trial. State v. French, 262 Neb. 664, 633 N.W.2d 908 (2001).


When the State dismissed a criminal charge contained in an information against defendant and subsequently files an information against defendant which alleges (1) the same offense charged in the previously dismissed information, (2) an offense committed simultaneously with a lesser-included offense charged in the information previously dismissed, or (3) commission of a crime that is a lesser-included offense of the crime charged in the dismissed information, time which elapses during the pendency of the informations shall be charged against the State in determining the last day for commencement of a defendant's trial pursuant to the Nebraska speedy trial act. State v. Sumstine, 239 Neb. 707, 478 N.W.2d 240 (1991).


Time between dismissal and refiling of a charge is not includable in calculating the six-month time period set forth in this section. State v. Batiste, 231 Neb. 481, 437 N.W.2d 125 (1989).


The time between the dismissal of an information and its refiling is not includable, or is tolled, for purposes of the statutory 6-month period. However, any nonexcludable time that passed under the original information is tacked onto any nonexcludable time under the refiled information, if the refiled information alleges the same offense charged in the previously dismissed information. State v. Carrera, 25 Neb. App. 650, 911 N.W.2d 849 (2018).


During the period between dismissal of a first information and the filing of a second information which alleges the same charges, the speedy trial time is tolled and the time resumes upon the filing of the second information, including the day of its filing. State v. Florea, 20 Neb. App. 185, 820 N.W.2d 649 (2012).


5. Excludable periods, generally


An excludable period of time under subdivision (4)(d) of this section did not occur because the State failed to prove it made diligent efforts to serve the bench warrant on the defendant while he was not incarcerated in another state. State v. Hernandez, 309 Neb. 299, 959 N.W.2d 769 (2021).


A pending arrest warrant can result in excludable speedy trial time only if the State proves diligent efforts to serve the warrant have been tried and failed. State v. Jennings, 308 Neb. 835, 957 N.W.2d 143 (2021).


In determining whether time is excludable for speedy trial purposes under subsection (4)(d) of this section, a trial date that is scheduled within 6 months after the defendant's reappearance will be presumed to be the next reasonably available trial date without the State being required to present further evidence to justify the setting. State v. Petty, 269 Neb. 205, 691 N.W.2d 101 (2005).


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 under subsection (4)(d) of this section. State v. Petty, 269 Neb. 205, 691 N.W.2d 101 (2005).


An excludable period under subsection (4)(d) of this section does not commence when a defendant fails to appear at a hearing of which he or she has no notice. The period of time during which a warrant is pending is not excludable when the warrant is issued after defendant's failure to appear at a hearing of which he had no notice, unless the State shows that diligent efforts to obtain defendant's presence have been tried and failed. State v. Richter, 240 Neb. 223, 481 N.W.2d 200 (1992).


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 under this section. State v. Letscher, 234 Neb. 858, 452 N.W.2d 767 (1990).


A delay may be justified for a good cause, such as a congested docket in the trial court, or scheduling difficulties on the part of the trial judge or the prosecutor. Where a defendant fails to appear for a scheduled trial and does not reappear until after the jury term, the period between the trial date and the next regular jury term may be excluded in determining whether the defendant has been denied a speedy trial. State v. Kriegler, 225 Neb. 486, 406 N.W.2d 137 (1987).


A plea agreement, which by its very terms delays the time for a defendant to plead, tolls the speedy trial statute. State v. McNitt, 216 Neb. 837, 346 N.W.2d 259 (1984).


The reasonable time used to obtain a deposition requested by a defendant in preparation for trial is excluded in computing the last day permissible for commencement of trial. State v. Fatica, 214 Neb. 776, 336 N.W.2d 101 (1983).


The time from filing to final disposition of pretrial motions must be excluded in computing the last day permissible for trial. State v. Brown, 214 Neb. 665, 335 N.W.2d 542 (1983).


The time from filing of pretrial motions to their final disposition is excluded in computing the time for trial. State v. Long, 206 Neb. 446, 293 N.W.2d 391 (1980).


Trial is to be held within six months after filing of information, but time from filing to final disposition of pretrial motions, or delay caused by defendant's absence, is excluded. State v. Stewart, 195 Neb. 90, 236 N.W.2d 834 (1975).


In computation of the six months within which accused must be brought to trial, periods of delay because of motions for change of venue and for continuance granted at the request, or with the consent, of defense counsel are excluded. State v. Ogden, 191 Neb. 7, 213 N.W.2d 349 (1973).


Pursuant to subsection (4)(a) of this section, the time during which an appeal of a denial of a motion for discharge is pending on appeal is excludable from the speedy adjudication trial clock. In re Interest of Shaquille H., 20 Neb. App. 141, 819 N.W.2d 741 (2012).


For purposes of speedy trial calculation, the period of time which elapses between scheduled pretrial hearings for which a defendant fails to appear and bond review hearings for which the defendant does appear is excluded from the 6-month statutory speedy trial period. State v. Rhoads, 11 Neb. App. 731, 660 N.W.2d 181 (2003).


6. Proceedings concerning the defendant


An excludable period of time under subdivision (4)(a) of this section did not occur because the court could not reasonably infer that defendant was incarcerated pending further proceedings. State v. Hernandez, 309 Neb. 299, 959 N.W.2d 769 (2021).


A "proceeding" within the meaning of subsection (4)(a) of this section is an application to a court of justice, however made, for aid in the enforcement of rights, for relief, for redress of injuries, for damages, or for any remedial object. State v. Tamayo, 280 Neb. 836, 791 N.W.2d 152 (2010).


An "examination and hearing on competency" within the meaning of subsection (4)(a) of this section is the well-defined statutory procedure for determining competency to stand trial established by section 29-1823. State v. Tamayo, 280 Neb. 836, 791 N.W.2d 152 (2010).


An interlocutory appeal taken by the defendant is a period of delay resulting from other proceedings concerning the defendant within the meaning of subsection (4)(a) of this section. State v. Williams, 277 Neb. 133, 761 N.W.2d 514 (2009).


The period of delay resulting from an attempt to have a defendant examined to determine his mental and physical competency to stand trial is not included in calculating the speedy trial period. State v. Dockery, 273 Neb. 330, 729 N.W.2d 320 (2007).


An inmate request form which is not an application to a court of justice for relief is not a proceeding under this section. State v. Feldhacker, 11 Neb. App. 608, 657 N.W.2d 655 (2003).


7. Defendant's pretrial motions or filings


It is presumed that a delay in hearing defense pretrial motions is attributable to the defendant unless the record affirmatively indicates otherwise. State v. Williams, 277 Neb. 133, 761 N.W.2d 514 (2009).


Subsection (4)(a) of this section excludes all time between the time of the filing of a defendant's pretrial motions and their final disposition, regardless of the promptness or reasonableness of the delay. The excludable period commences on the day immediately after the filing of a defendant's pretrial motion. Final disposition under subsection (4)(a) of this section occurs on the date the motion is granted or denied. State v. Williams, 277 Neb. 133, 761 N.W.2d 514 (2009).


A motion for discovery filed by a defendant is a pretrial motion and the time period during which it is pending should be excluded for speedy trial calculation purposes. State v. Washington, 269 Neb. 728, 695 N.W.2d 438 (2005).


Pursuant to subsection (4)(a) of this section, it will be presumed that a delay in hearing defense pretrial motions is attributable to the defendant unless the record affirmatively indicates otherwise. State v. Turner, 252 Neb. 620, 564 N.W.2d 231 (1997); State v. Curry, 18 Neb. App. 284, 790 N.W.2d 441 (2010).


An excludable time period under subsection (4)(a) of this section commences on the day immediately after the filing of a defendant's pretrial motion. To avoid a defendant's absolute discharge from an offense charged, as dictated by section 29-1208, the State, by a preponderance of evidence, must prove existence of a time period to be excluded under subsection (4) of this section. State v. Oldfield, 236 Neb. 433, 461 N.W.2d 554 (1990).


Pursuant to subsection (4)(a) of this section, a defendant must accept reasonable delay as a consequence of the defendant's pretrial motions. State v. Oldfield, 236 Neb. 433, 461 N.W.2d 554 (1990).


Judicial delay, absent a showing of good cause, does not suspend a defendant's right to a speedy trial. Where the court took 1 year 7 months 24 days to resolve a single motion to suppress, the delay suffered by the defendant was not the reasonable consequence of filing a motion and did not toll the speedy trial statute. State v. Wilcox, 224 Neb. 138, 395 N.W.2d 772 (1986).


Time utilized in disposing of pretrial motion filed by defendant is excluded by statute. State v. Classen, 216 Neb. 323, 343 N.W.2d 749 (1984).


Pursuant to subdivision (4)(a) of this section, it is presumed that a delay in hearing defense pretrial motions is attributable to the defendant unless the record affirmatively indicates otherwise. A delay due to the appointment of the district court judge to the Nebraska Supreme Court, which caused the case to be reassigned, should be attributable to the defendant's motion to suppress as reasonable delay when there is no evidence of judicial neglect. State v. Carrera, 25 Neb. App. 650, 911 N.W.2d 849 (2018).


Unlike the requirement in subsection (4)(f) of this section that any delay be for good cause, conspicuously absent from subsection (4)(a) of this section is any limitation, restriction, or qualification of the time which may be charged to the defendant as a result of the defendant's motions. Rather, the plain terms of subsection (4)(a) exclude all time between the time of the filing of the defendant's pretrial motions and their final disposition, regardless of the promptness or reasonableness of the delay. State v. Johnson, 22 Neb. App. 747, 860 N.W.2d 222 (2015).


Because the filing of a defendant's pro se plea in abatement tolled the statutory speedy trial clock, and the excludable period continued until the court ruled on the plea in abatement, when the defense counsel filed a subsequent plea in abatement, the clock was already stopped and such filing had no effect on the speedy trial calculation. State v. Henshaw, 19 Neb. App. 663, 812 N.W.2d 913 (2012).


Once defendant's pro se plea in abatement was filed by the clerk of the district court, the statutory speedy trial clock stopped until the trial court disposed of the pretrial motion, and it was irrelevant for speedy trial purposes whether defendant's plea in abatement was properly filed. State v. Henshaw, 19 Neb. App. 663, 812 N.W.2d 913 (2012).


Speedy trial statute excludes all time between the filing of a defendant's pretrial motions and their disposition, regardless of the promptness or reasonableness of the delay; the excludable period commences on the day immediately after the filing of a defendant's pretrial motion, and final disposition occurs on the date the motion is granted or denied. State v. Henshaw, 19 Neb. App. 663, 812 N.W.2d 913 (2012).


Final disposition under subsection (4)(a) of this section occurs on the date the defendant's motion is granted or denied. State v. Curry, 18 Neb. App. 284, 790 N.W.2d 441 (2010).


In a speedy trial analysis under subsection (4)(a) of this section, the excludable period commences on the day immediately after the filing of a defendant's pretrial motion. State v. Curry, 18 Neb. App. 284, 790 N.W.2d 441 (2010).


The excludable period under this section commences on the day immediately after the filing of a defendant's pretrial motion. State v. Feldhacker, 11 Neb. App. 608, 657 N.W.2d 655 (2003).


A defendant's successful motion in the district court to suppress evidence is not finally granted or determined, unless there is no appeal, until a judge of the Court of Appeals has decided the matter under section 29-116. The time from the defendant's filing of such a motion until final determination is excluded in the speedy trial calculation. State v. Hayes, 10 Neb. App. 833, 639 N.W.2d 418 (2002).


8. Continuance at request of defendant or with defendant's consent


A prior defense motion for indefinite continuance remains effective, in terms of excluding time from the statutory 6-month speedy trial period, as to all charges in an amended information when the amended information charges some of the same crimes as the preceding information, as well as additional crimes unrelated to the same facts of the preceding information. State v. Hettle, 288 Neb. 288, 848 N.W.2d 582 (2014).


Without severance of the individual charges from the pending prosecution, a motion for continuance is not applied piecemeal to certain charges under the information, but not to others, in the context of applying the 6-month statutory speedy trial period. State v. Hettle, 288 Neb. 288, 848 N.W.2d 582 (2014).


The delay caused by a continuance granted for the defendant is excluded from the 6-month period during which the defendant must be brought to trial, pursuant to subsection (4)(b) of this section. State v. Wells, 277 Neb. 476, 763 N.W.2d 380 (2009).


For speedy trial purposes, the calculation for a continuance begins the day after the continuance is granted and includes the day on which the continuance ends. In the case of an indefinite continuance, the calculation runs from the day immediately following the grant of the continuance and ends when the defendant takes some affirmative action, such as requesting a trial date, to show his or her desire for the indefinite continuance to end or, absent such a showing, on the rescheduled trial date. State v. Williams, 277 Neb. 133, 761 N.W.2d 514 (2009).


In determining whether a period of delay is attributable to defense counsel's motion to continue, an appellate court need not inquire as to what extent there was "good cause" for the delay. State v. Sims, 272 Neb. 811, 725 N.W.2d 175 (2006).


In computing the time for trial the period of delay resulting from a continuance granted at the request of the defendant or his counsel is excluded. State v. Jameson, 224 Neb. 38, 395 N.W.2d 744 (1986).


Pursuant to subsection (4)(b) of this section, where a juvenile's counsel agrees to reset an adjudication proceeding, such period of delay resulting therefrom is excludable. In re Interest of Shaquille H., 20 Neb. App. 141, 819 N.W.2d 741 (2012).


Under subdivision (4)(b) of this section, the period of delay resulting from a continuance granted at the request or with the consent of the defendant or his counsel shall be excluded from the calculation of the time for trial. State v. Mortensen, 19 Neb. App. 220, 809 N.W.2d 793 (2011).


When a nonlawyer makes a motion for continuance made on behalf of a defendant in a criminal case, such motion constitutes a nullity and cannot form the basis for an exclusion from the speedy trial calculation under subsection (4)(b) of this section. State v. Craven, 17 Neb. App. 127, 757 N.W.2d 132 (2008).


Where the defendant appeared without the private counsel that he had earlier informed the court he intended to retain and the trial court appointed a public defender and suddenly announced that it was continuing the matter, the resulting delay was properly excluded under subsection (4)(f) of this section rather than (4)(b), because the record did not show that the postponement was granted at the defendant's request or with his consent. State v. Craig, 15 Neb. App. 836, 739 N.W.2d 206 (2007).


Subsection (4)(b) clearly excludes from the 6-month time limit periods of delay resulting from continuances granted at the request of defendant's counsel. State v. Stubbs, 5 Neb. App. 38, 555 N.W.2d 55 (1996).


9. Continuance at request of prosecution


Pursuant to subdivision (4)(c)(i) of this section, the prosecution established a period of delay under the speedy trial statute, because the prosecutor's affidavit demonstrated the need for a continuance due to the unavailability of material witnesses; the prosecutor's exercise of due diligence in obtaining witnesses; and reasonable grounds to believe such evidence will be available at later date. State v. Billingsley, 309 Neb. 616, 961 N.W.2d 539 (2021).


Pursuant to subdivision (4)(c)(ii) of this section, the prosecution established a period of delay under the speedy trial statute, because the prosecutor's affidavit demonstrated the need for additional time to prepare its case because of exceptional circumstances. State v. Billingsley, 309 Neb. 616, 961 N.W.2d 539 (2021).


Where the period of delay sought by the State's motion fell under the period specifically enumerated in subsection (4)(c)(i) of this section, that was the applicable subsection for purposes of speedy trial analysis. State v. Shipler, 17 Neb. App. 66, 758 N.W.2d 41 (2008).


10. Interlocutory appeal


When the State is statutorily authorized to take an interlocutory appeal from a district court's order granting a defendant's pretrial motion in a criminal case, then such an appeal is an expected and reasonable consequence of the defendant's motion and the time attributable to the appeal, regardless of the course the appeal takes, is properly excluded from speedy trial computation. State v. Hood, 294 Neb. 747, 884 N.W.2d 696 (2016).


Where further proceedings are to be had following an interlocutory appeal, for speedy trial purposes, the period of time excludable due to the appeal concludes when the district court first reacquires jurisdiction over the case by taking action on the mandate of the appellate court. State v. Baker, 264 Neb. 867, 652 N.W.2d 612 (2002).


Where further proceedings are to be had following an interlocutory appeal, for speedy trial purposes, the period of time excludable due to the appeal concludes when the district court first reacquires jurisdiction over the case by taking action on the mandate of the appellate court. An interlocutory appeal taken by the defendant is a period of delay resulting from other proceedings concerning the defendant within the meaning of subsection (4)(a) of this section. State v. Ward, 257 Neb. 377, 597 N.W.2d 614 (1999).


11. Good cause


"Good cause" means a substantial reason, one that affords a legal excuse. Good cause is a factual question to be addressed on a case-by-case basis. State v. Coomes, 309 Neb. 749, 962 N.W.2d 510 (2021).


Evidence of a crowded docket alone is insufficient to support a finding of good cause for exclusion of time periods under this section. In re Interest of Shaquille H., 285 Neb. 512, 827 N.W.2d 501 (2013).


Pursuant to subsection (4)(f) of this section, good cause is not shown simply because there has been no proof that the State acted in bad faith or because the substantive issue raised by the appeal has not previously been decided. State v. Recek, 263 Neb. 644, 641 N.W.2d 391 (2002).


The period of time from the trial court's ruling on a motion for depositions until the depositions are concluded is not excludable under subsection (4)(a) of this section. However, such a period may or may not be excluded under subsection (4)(f) of this section, the inquiry turning upon whether there is good cause for the delay. Pursuant to subsection (4)(a) of this section, a proceeding is an application to a court of justice, however made, for aid in the enforcement of rights, for relief, for redress of injuries, for damages, or for any remedial object. State v. Murphy, 255 Neb. 797, 587 N.W.2d 384 (1998).


If a trial court relies upon section 29-1207(4)(f), R.R.S.1943, in excluding a period of delay from the six-month computation, a general finding of "good cause" will not suffice; there must be specific findings as to the good cause. State v. Kinstler, 207 Neb. 386, 299 N.W.2d 182 (1980); State v. Johnson, 201 Neb. 322, 268 N.W.2d 85 (1978).


It is a misapplication of the "good cause" provision of the speedy trial statute to exclude a defendant's trial preparation time, such as securing a transcript of a previous hearing, which is not specifically within this section, when the State has not proved both a period of delay and good cause for it. State v. Feldhacker, 11 Neb. App. 872, 663 N.W.2d 143 (2003).


Pursuant to subsection (4) of this section, it is the State's burden to establish that facts showing good cause under the speedy trial statute exist to delay a defendant's trial beyond the 6-month time period. State v. Rhoads, 11 Neb. App. 731, 660 N.W.2d 181 (2003).


Statements made by a judge cannot be used to show good cause under subsection (4)(f) of this section. State v. Roundtree, 11 Neb. App. 628, 658 N.W.2d 308 (2003).


12. Specific findings by court required


When ruling on a motion for absolute discharge pursuant to section 29-1208, the trial court shall make specific findings of each period of delay excludable under subdivisions (4)(a) to (e) of this section, in addition to the findings under subdivision (4)(f) of this section. Such findings shall include the date and nature of the proceedings, circumstances, or rulings which initiated and concluded each excludable period; the number of days composing each excludable period; and the number of days remaining in which the defendant may be brought to trial after taking into consideration all excludable periods. State v. Lintz, 298 Neb. 103, 902 N.W.2d 683 (2017).


A juvenile court judge must make specific findings on the record regarding any excludable time periods as defined in this section before making the ultimate determination as to whether discharge would be in the best interests of a child. In re Interest of Shaquille H., 285 Neb. 512, 827 N.W.2d 501 (2013).


When ruling on a motion for absolute discharge, specific findings of all excludable periods of subdivisions (4)(a) to (f) of this section are required. In re Interest of Shaquille H., 285 Neb. 512, 827 N.W.2d 501 (2013).


Effective March 9, 2009, when ruling on a motion for absolute discharge pursuant to section 29-1208, the trial court shall make specific findings of each period of delay excludable under subsections (4)(a) to (e) of this section, in addition to the findings under subsection (4)(f) of this section. Such findings shall include the date and nature of the proceedings, circumstances, or rulings which initiated and concluded each excludable period; the number of days composing each excludable period; and the number of days remaining in which the defendant may be brought to trial after taking into consideration all excludable periods. State v. Williams, 277 Neb. 133, 761 N.W.2d 514 (2009).


13. Trial not within six months


The burden of proof is upon the State to show that one or more of the excluded time periods under subsection (4) of this section are applicable when the defendant is not tried within 6 months. State v. Williams, 277 Neb. 133, 761 N.W.2d 514 (2009); State v. Shipler, 17 Neb. App. 66, 758 N.W.2d 41 (2008); State v. Droz, 14 Neb. App. 32, 703 N.W.2d 637 (2005); State v. Schmader, 13 Neb. App. 321, 691 N.W.2d 559 (2005).


To obtain absolute discharge under section 29-1208, a defendant is not required to show prejudice sustained as the result of failure to bring the defendant to trial within 6 months in accordance with subsection (2) of this section. State v. Knudtson, 262 Neb. 917, 636 N.W.2d 379 (2001).


The State has the burden of proving that one or more of the excluded periods of time under subsection (4) of this section are applicable if defendant is not tried within 6 months of the filing of the information in a criminal action. State v. Groves, 238 Neb. 137, 469 N.W.2d 364 (1991); State v. Beck, 212 Neb. 701, 325 N.W.2d 148 (1982); State v. Bolton, 210 Neb. 694, 316 N.W.2d 619 (1982); State v. Curry, 18 Neb. App. 284, 790 N.W.2d 441 (2010); State v. Washington, 11 Neb. App. 598, 658 N.W.2d 302 (2003).


It may be reasonably argued that the exclusionary period set forth in section 29-1207(4), R.R.S.1943, would cover the period from a defendant's commitment as a sexual sociopath to the court's opinion in State v. Shaw, 202 Neb. 766, 277 N.W.2d 106 (1979) or the Legislature's enactment of sections 29-2911 to 29-2921, R.R.S.1943. However, since this defendant was not brought to trial within six months of either date, the issue of when to begin computing the time will not be decided here. State v. Kinstler, 207 Neb. 386, 299 N.W.2d 182 (1980).


If a defendant is not tried within six months of the commencement of a criminal action, the State has the burden of proving by a substantial preponderance of the evidence that one or more of the excluded periods of time under subsection (4) of this section, is applicable. State v. Johnson, 201 Neb. 322, 268 N.W.2d 85 (1978).


Where trial not commenced within six months of filing the information, upon motion for discharge, burden is on the state to prove one or more of the excluded periods is applicable, or defendant is entitled to an absolute discharge. State v. Hankins, 200 Neb. 69, 262 N.W.2d 197 (1978).


To support a continuance of trial for good cause beyond six months from filing of information, the court must make specific findings, based upon substantial preponderance of evidence, as to the cause or causes of such extension and the period of extension attributable to such cause or causes. State v. Brown, 189 Neb. 297, 202 N.W.2d 585 (1972); State v. Alvarez, 189 Neb. 281, 202 N.W.2d 604 (1972).


Where a defendant has not been brought to trial within six months and before trial or plea of guilty or nolo contendere he moves for his discharge, the state's burden is to prove by a substantial preponderance of the evidence that one or more of the excludable periods hereunder is applicable. State v. Brown, 189 Neb. 297, 202 N.W.2d 585 (1972); State v. Alvarez, 189 Neb. 281, 202 N.W.2d 604 (1972).


If defendant is not brought to trial before the running of the statutory speedy trial time period, as extended by excludable periods, he or she shall be entitled to his or her absolute discharge. State v. Henshaw, 19 Neb. App. 663, 812 N.W.2d 913 (2012).


14. Waiver


Although amendments to subdivision (4)(b) of this section providing for waiver of speedy trial rights if delay results from a request for continuance were designed to prevent abuse, it does not follow that the waiver set forth therein applies only if the defendant's continuance was in bad faith; such a case-by-case evaluation of subjective intent would be untenable, and this section does not provide for it. State v. Bridgeford, 298 Neb. 156, 903 N.W.2d 22 (2017).


The reason for the defendant's request for a continuance is irrelevant to whether the defendant has waived the statutory right to a speedy trial by requesting a continuance that results in the trial's being rescheduled to a date more than 6 months after the indictment is returned or information filed. State v. Gill, 297 Neb. 852, 901 N.W.2d 679 (2017).


For purposes of waiving the statutory 6-month speedy trial period, a defendant's motion for indefinite continuance in an ongoing prosecution under the same case number applies not only to those charges that were pending at the time the motion was made, but also to any charges later added by amendment. State v. Hettle, 288 Neb. 288, 848 N.W.2d 582 (2014).


A motion to discharge filed before subdivision (4)(b) of this section became operative cannot waive the statutory right to a speedy trial in the manner established by State v. Mortensen, 287 Neb. 158, 841 N.W.2d 393 (2014). State v. Vela-Montes, 287 Neb. 679, 844 N.W.2d 286 (2014).


A defendant's motion to discharge based on statutory speedy trial grounds will be deemed to be a waiver of that right under subdivision (4)(b) of this section where (1) the filing of such motion results in the continuance of a timely trial to a date outside the statutory 6-month period, as calculated on the date the motion to discharge was filed, (2) discharge is denied, and (3) that denial is affirmed on appeal. State v. Mortensen, 287 Neb. 158, 841 N.W.2d 393 (2014); State v. Fioramonti, 22 Neb. App. 52, 847 N.W.2d 95 (2014).


For purposes of the waiver provided in subdivision (4)(b) of this section, a motion to discharge is a request for a continuance. State v. Mortensen, 287 Neb. 158, 841 N.W.2d 393 (2014).


Subdivision (4)(b) of this section, as amended, provides for a permanent waiver of the statutory right to a speedy trial. State v. Mortensen, 287 Neb. 158, 841 N.W.2d 393 (2014).


Where an appellate court determines that a defendant waived his or her statutory right to a speedy trial, the court is not required to calculate the days remaining to bring him or her to trial under this section. State v. Mortensen, 287 Neb. 158, 841 N.W.2d 393 (2014).


The statutory right to a speedy trial is not a personal right that can be waived only by a defendant. Defense counsel's request for a continuance in order to prepare for trial waives a defendant's statutory right to a speedy trial despite the defendant's objections to the continuance. State v. McHenry, 268 Neb. 219, 682 N.W.2d 212 (2004).


This section does not address waivers of the right to a speedy trial, nor does it suggest that a waiver cannot be limited in time. This section does not provide that by requesting a continuance, a defendant has completely waived the right to a speedy trial. Rather, it provides that the delay caused by a continuance granted for the defendant is excluded from the 6-month period and counted against the defendant. State v. Knudtson, 262 Neb. 917, 636 N.W.2d 379 (2001).


A defendant may waive his right to a speedy trial under this section so long as he is properly advised of his right to a speedy trial and the waiver is entered voluntarily, knowingly, and intelligently. A defendant may terminate his waiver of a speedy trial by filing a written request for trial with the clerk of the court in which the defendant is to be tried. From the date the defendant files his written request for trial, the six-month period for the state to bring a defendant to trial provided in this section shall begin anew. State v. Andersen, 232 Neb. 187, 440 N.W.2d 203 (1989).


Where a defendant has waived his right to a speedy trial and thereafter withdraws that waiver and renews his request for a speedy trial, the time between the initial waiver and the later request to withdraw must be excluded from the computation of the six-month period. State v. Williams, 211 Neb. 650, 319 N.W.2d 748 (1982).


The failure of the accused to object to the setting of a trial date more than six months after charges were filed did not constitute a waiver of his rights under this section. State v. Kinstler, 207 Neb. 386, 299 N.W.2d 182 (1980).


It was not the duty of the trial court to suggest to the defendant or his counsel that he file a motion for discharge. State v. Hert, 192 Neb. 751, 224 N.W.2d 188 (1974).


Once a defendant has unconditionally waived his or her right to a speedy trial, it is his or her burden to show by a preponderance of the evidence that the waiver was conditional or was otherwise invalid. State v. Herngren, 8 Neb. App. 207, 590 N.W.2d 871 (1999).


15. Interplay with constitutional speedy trial requirement


Pursuant to subsection (1) of this section, the constitutional right to a speedy trial is guaranteed by U.S. Const. amend. VI and Neb. Const. art. I, section 11; the constitutional right to a speedy trial and the statutory implementation of that right exist independently of each other. State v. Karch, 263 Neb. 230, 639 N.W.2d 118 (2002).


The constitutional right to a speedy trial and the statutory implementation of that right under this section exist independently of each other. Determining whether a defendant's constitutional right to a speedy trial has been violated requires a balancing test in which courts must approach each case on an ad hoc basis. This balancing test involves four factors: length of delay, the reason for the delay, the defendant's assertion of the right, and prejudice to the defendant. None of these four factors standing alone is a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, the factors are related and must be considered together with such other circumstances as may be relevant. State v. Andersen, 232 Neb. 187, 440 N.W.2d 203 (1989).


The constitutional right to a speedy trial and the statutory implementation of that right under this section exist independently of each other. State v. Sardeson, 231 Neb. 586, 437 N.W.2d 473 (1989).


Although the constitutional right to a speedy trial and the statutory implementation of that right exist independently of each other, this section provides a useful standard for assessing whether the length of the delay is unreasonable under the U.S. and Nebraska Constitutions. State v. Schmader, 13 Neb. App. 321, 691 N.W.2d 559 (2005).


The 6-month timeframe provided by this section is a useful standard for assessing whether the length of the delay under the Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 1282, 33 L. Ed. 2d 101 (1972), speedy trial test is unreasonable under the Constitutions, both state and federal. State v. Robinson, 12 Neb. App. 897, 687 N.W.2d 15 (2004).


16. Miscellaneous


For purposes of speedy trial calculation, there is no meaningful distinction between the phrases "period of time" and "period of delay." State v. Coomes, 309 Neb. 749, 962 N.W.2d 510 (2021); State v. Feldhacker, 267 Neb. 145, 672 N.W.2d 627 (2004).


A Nebraska prisoner sought relief under two different speedy trial statutes, but only section 29-3805, governing intrastate detainers, applied. State v. Kolbjornsen, 295 Neb. 231, 888 N.W.2d 153 (2016).


"Misdemeanor offense involving intimate partners," within the meaning of subsection (2) of this section, does not encompass any and all misdemeanors in which intimate partners may be engaged. Rather, the exception applies only to those misdemeanor offenses in which the involvement of an "intimate partner" is an element of the offense. State v. Lebeau, 280 Neb. 238, 784 N.W.2d 921 (2010).


A court may not apply Nebraska's 6-month speedy trial statute under this section to determine whether a prisoner is timely brought to trial under article III(a) of the Agreement on Detainers. State v. Rieger, 270 Neb. 904, 708 N.W.2d 630 (2006).


Subsection (3) of this section does not apply to a defendant who has not yet been brought to trial. State v. Baker, 264 Neb. 867, 652 N.W.2d 612 (2002).


Once the operation of Nebraska's speedy trial statutes have been triggered by the filing of an indictment or information, the statutory right of a defendant under the control of prosecuting authorities who knowingly extradite him or her to another state or to federal authorities is governed by this section, not the Agreement on Detainers. State v. Steele, 261 Neb. 541, 624 N.W.2d 1 (2001).


For purposes of this section, the date of the mandate on remand is the date on which the district court first takes action pursuant to the mandate. State v. White, 257 Neb. 943, 601 N.W.2d 731 (1999).


For purposes of subsection (3) of this section, the date of the "mandate on remand" is the date on which the district court first takes action pursuant to the mandate. State v. Kinser, 256 Neb. 56, 588 N.W.2d 794 (1999).


A ruling on a motion for absolute discharge based upon an accused criminal's nonfrivolous claim that his or her statutory speedy trial rights were violated is final and appealable. For the purpose of determining whether an accused's speedy trial rights under this section have been violated, successive informations charging the same offenses are not to be considered separately. Where a retrial is ordered, it is the trial for the specific criminal offenses originally charged and other offenses required by law to be joined therewith that must begin within 6 months of the retrial order, not a trial on a specific information. State v. Gibbs, 253 Neb. 241, 570 N.W.2d 326 (1997).


The speedy trial act also applies to prosecutions on complaint. State v. Vrtiska, 227 Neb. 600, 418 N.W.2d 758 (1988).


Length of delay, the reason for the delay, the defendant's assertion of the right to speedy trial, and prejudice to the defendant are factors to consider in the balancing process which weighs the conduct of both the State and the defendant. These factors did not need to be considered where a delay of 17 weeks from the return of a mandate to a trial did not constitute an unreasonable delay. State v. Palmer, 224 Neb. 282, 399 N.W.2d 706 (1986).


It is the state's burden to prove by a preponderance of the evidence that there has been compliance with this section. State v. Bennett, 219 Neb. 601, 365 N.W.2d 423 (1985).


Unreasonable delays occurring prior to the filing of an information will be considered in determining whether a defendant has been denied a speedy trial. State v. Gingrich, 211 Neb. 786, 320 N.W.2d 445 (1982).


Under time schedule of this case, defendant was not denied his constitutional or statutory right to a speedy trial. State v. Clouse, 195 Neb. 671, 240 N.W.2d 36 (1976).


Although statutory requirements for speedy trial refer only to indictments and informations, the references held to include complaints. State v. Stevens, 189 Neb. 487, 203 N.W.2d 499 (1973).


The phrase "period of delay," as used in subsection (4) of this section, is synonymous with the phrase "period of time." State v. Fioramonti, 22 Neb. App. 52, 847 N.W.2d 95 (2014).


As a general rule, a trial court's determination as to whether charges should be dismissed on statutory speedy trial grounds is a factual question which will be affirmed on appeal unless clearly erroneous. State v. Henshaw, 19 Neb. App. 663, 812 N.W.2d 913 (2012).


A plea agreement not entered into on the record before any court or tribunal, but, rather, made during private negotiations between the parties, is not a "proceeding" within the meaning of subsection (4)(a) of this section. State v. Vasquez, 16 Neb. App. 406, 744 N.W.2d 500 (2008).


Because a transcript of a previous court proceeding is something to which a defendant would normally be entitled as a matter of right and because a praecipe is simply a directive to the court reporter to prepare such official transcript, the time period while the reporter prepares the transcript is simply trial preparation and does not automatically become a period of delay under this section. State v. Feldhacker, 11 Neb. App. 872, 663 N.W.2d 143 (2003).


Under subsection (4) of this section, the court may grant a prosecutor's oral motion for continuance upon oral statements of the prosecutor where the defense does not object to the procedure and where facts as stated by the prosecutor would be sufficient had they been sworn. State v. Roundtree, 11 Neb. App. 628, 658 N.W.2d 308 (2003).


There is no reasonableness inquiry required with regard to excludable periods that properly fall under this section because such periods are automatically excluded in computing the time for trial. State v. Feldhacker, 11 Neb. App. 608, 657 N.W.2d 655 (2003).


Where a defendant moves for discharge on denial of speedy trial grounds and the record affirmatively shows that 6 months has not elapsed between the filing of the information and the defendant's motion, the burden to show a denial of the right to a speedy trial is then placed on the defendant. State v. Bassette, 6 Neb. App. 192, 571 N.W.2d 133 (1997).

Structure Nebraska Revised Statutes