State v. Shipler

of the nature found crucial in Wagner and Hosack. Finally,
we are unable to distinguish the directive in City of Ashland
v. Ashland Salvage, 271 Neb. 362, 711 N.W.2d 861 (2006), to
prepare an injunction from the directive in this case to “submit
the plan.”
Therefore, for these reasons, any appeal had to be taken
within 30 days of the September 17 order, which, incidentally,
was when the July 9 order on attorney fees, which Kathleen
seeks to address in her first assignment of error, also became
final. Therefore, we lack jurisdiction over Kathleen’s appeal.
CONCLUSION
While Nebraska jurisprudence on the subject of appellate
jurisdiction and final, appealable orders is undoubtedly diffi-
cult for a pro se litigant such as Kathleen to navigate, the trial
court’s procedure and orders made the jurisdictional shoals
rockier than usual. That said, Kathleen’s appeal was filed out
of time as explained above, and thus, we dismiss her appeal.
We also vacate that portion of the September 17 order attempt-
ing to extend the time in which to appeal.
O rder vacated in part , and appeal dismissed .
state Of nebraska , appellee , v .
mickey l. shipler , appellant .
758 N.W.2d 41
Filed September 23, 2008. 	No. A-07-1176.
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. Judgments: Statutes: Appeal and Error. 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.
3. Speedy Trial: Pretrial Procedure. Oral or other informal statements are obvi-
ously a poor procedure when speedy trial rights are involved.
4. Speedy Trial: Motions for Continuance: Prosecuting Attorneys. It is not error
for a trial court to grant a prosecutor an oral motion for a continuance under
Neb. Rev. Stat. § 29-1207(4) (Reissue 1995) even though the only showing is by
the oral statements of the prosecutor when the defendant and his or her counsel
66 	17 NebRASKA AppeLLATe RepORTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:15 AM CST

are present and do not object on the record to the oral motion and showing, and
where the facts as stated by the prosecutor would be sufficient if they had been
contained in an affidavit or otherwise made under oath.
5. 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
1995) are applicable when the defendant is not tried within 6 months.
6. Speedy Trial. Neb. Rev. Stat. § 29-1207 (Reissue 1995) 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.
7. ____. To calculate the time 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 Neb. Rev. Stat. § 29-1207(4) (Reissue 1995) to
determine the last day the defendant can be tried.
Appeal from the District Court for Sarpy County: W illiam
b. Z astera, Judge. Reversed and remanded with directions
to dismiss.
patrick 	J. 	boylan, 	Chief 	Deputy 	Sarpy 	County 	public
Defender, for appellant.
Jon 	bruning, 	Attorney 	General, 	and 	James 	D. 	Smith
for appellee.
sievers , mOOre, and cassel, Judges.
mOOre, Judge.
INTRODUCTION
Mickey L. Shipler appeals the order of the district court for
Sarpy County that denied his motion for absolute discharge.
because we find that the court was clearly erroneous in its
determination that Shipler’s statutory right to a speedy trial was
not violated, we reverse, and remand the matter with directions
to dismiss. pursuant to this court’s authority under Neb. Ct. R.
App. p. § 2-111(b)(1), this case was ordered submitted without
oral argument.
bACKGROUND
The State filed the initial information in this case on May
24, 2006, charging Shipler with first degree sexual assault on a
child, incest, and sexual assault of a child.
STATe v. ShIpLeR 	67
Cite as 17 Neb. App. 66

Shipler filed a number of pretrial motions, which are relevant
to the speedy trial calculation. Shipler filed a motion to quash
on June 9, 2006, which the district court denied on June 19. At
a pretrial hearing on July 25, Shipler’s counsel made a motion
for discovery and review of videotapes. Upon Shipler’s motion,
the pretrial hearing was continued to August 23. On August
23, Shipler filed a motion to suppress and a motion in limine,
which motions were denied by the court on November 21. A
docket entry dated February 7, 2007, shows that Shipler made
an oral motion for continuance on that date, which was granted
by the district court, and the trial scheduled for February 12
was canceled. Shipler filed a motion to continue on February 9,
which apparently corresponds with his oral motion of February
7. Trial was subsequently scheduled for March 14. Shipler also
filed a written motion to continue on March 9, which the dis-
trict court granted on that date, continuing the jury trial date to
May 9.
On May 4, 2007, the State filed a written motion to con-
tinue. The State averred that the “State’s witness is out-of-state
and will not be available for Trial on May 9, 2007.” The State
requested “a finding of good cause for the continuance.” The
State did not attach an affidavit to its motion.
The district court heard the State’s motion for continuance on
May 9, 2007. At the hearing, the prosecutor informed the court
that one of the State’s “key witnesses” was in Washington,
D.C., and was unavailable for trial. Shipler objected to the
motion, arguing that Shipler had been in custody 378 days and
hoped for a resolution. Shipler’s counsel concluded:
And I understand that the [S]tate usually calls more
witnesses than the defense, and I understand that — the
circumstances in this case, but — I think we’re in a
position where despite the fact that we’ve had prior con-
tinuances, we need to let the Court know that we — we
object to this continuance on the basis of what you have
in front of you in terms of the motion and — just that and
the motion.
The following colloquy then took place:
The COURT: Who is the witness that isn’t here?
68 	17 NebRASKA AppeLLATe RepORTS

[The State]: Investigator Martins. he interrogated . . .
Shipler, was part of the interrogation. . . . Shipler did end
up ultimately confessing during the two-part interrogation
to both [I]nvestigator Martins and Investigator Teuscher,
they did the interrogation.
The COURT: Was there a motion to suppress filed?
[The State]: Yes, there was, and you overruled it.
The COURT: Okay. The Court will find for good
cause the [S]tate’s motion for continuance is sustained.
Matter’s continued — I have no jury term in June, so it’s
continued to July the 5th at 9 a.m.
In a docket entry dated May 9, 2007, the court noted, “The
Court having considered the State’s Motion for Continuance
finds just cause for reason of the unavailability of the State’s
key witness.” The court set the trial date for July 5.
Shipler filed a motion in limine on July 2, 2007. At that
time, the court continued the jury trial date, pending its ruling
on Shipler’s motion. On July 27, the court denied Shipler’s
motion in limine. A jury trial was subsequently scheduled for
September 10.
Shipler filed his motion to discharge on speedy trial grounds
on September 4, 2007, and the State filed an objection. The
district court conducted a hearing on the motion on October 10.
At the hearing, the State presented its speedy trial calculations,
which excluded time for the State’s May 4 motion to continue
“because there was a finding of good cause.” Shipler argued
that the State’s motion to continue was improperly granted
because the motion was unsupported by an affidavit or other
documentation. Shipler’s speedy trial calculation which was
received into evidence by the court did not exclude the time
associated with the State’s motion for continuance.
The district court entered an order on November 5, 2007,
denying Shipler’s motion to discharge. In its calculation, the
district court excluded time attributable to the State’s motion to
continue “for good cause shown.” Shipler appeals.
ASSIGNMeNT OF eRROR
Shipler asserts, consolidated and restated, that the district
court erred in denying his motion to discharge by excluding
STATe v. ShIpLeR 	69
Cite as 17 Neb. App. 66

the time attributable to the State’s motion to continue from its
speedy trial calculation.
STANDARD OF ReVIeW
[1] 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. State v. Sommer, 273 Neb. 587, 731 N.W.2d
566 (2007).
[2] 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. Schinzel, 271 Neb. 281, 710
N.W.2d 634 (2006).
ANALYSIS
State’s Motion to Continue.
Shipler argues that the district court erred in denying his
motion to discharge by excluding the time attributable to the
State’s motion to continue from its speedy trial calculation.
In addressing Shipler’s assignment of error, we must con-
sider whether the time attributable to the State’s motion was
excludable and under which subsection of Neb. Rev. Stat.
§ 29-1207 (Reissue 1995) it should be considered. In order to
evaluate whether the time is excludable, we must determine
what evidence is available for our consideration, and in doing
so, we first consider the method by which the State sought
a continuance.
Shipler argues that the State’s method for seeking a continu-
ance in this case did not comply with the requirements of Neb.
Rev. Stat. § 25-1148 (Reissue 1995). That section provides:
Whenever application for continuance or adjournment
is made by a party or parties to any cause or proceeding
pending in the district court of any county, such applica-
tion shall be by written motion entitled in the cause or
proceeding and setting forth the grounds upon which the
application is made, which motion shall be supported by
the affidavit or affidavits of person or persons compe-
tent to testify as witnesses under the laws of this state,
70 	17 NebRASKA AppeLLATe RepORTS

in proof of and setting forth the facts upon which such
continuance or adjournment is asked. After the filing of
such application and the affidavits in support thereof, the
adverse party shall have the right to file counter affidavits
in the matter. either party may, upon obtaining leave of
the court, introduce oral testimony upon the hearing of
such application. The court may, upon the hearing, in its
discretion, grant or refuse such application, and no rever-
sal of such cause or proceeding shall be had on account of
the action of the court in granting or refusing such appli-
cation except when there has been an abuse of a sound
legal discretion by the court.
Neb. Rev. Stat. § 29-1206 (Reissue 1995) provides that motions
for continuance in the criminal context shall be made in accord-
ance with the above civil procedure statute. Shipler points
out that the State’s motion to continue was not supported by
affidavits, thereby depriving Shipler of the opportunity to file
affidavits in response. he also complains that the State intro-
duced oral testimony at the hearing on the motion through the
prosecutor’s remarks but did not obtain leave to do so.
[3,4] In State v. Roundtree, 11 Neb. App. 628, 658 N.W.2d
308 (2003), this court considered whether the oral, unsworn
statements made by the prosecutor to the court in the pres-
ence of the defendant and his counsel was a satisfactory
method to seek a continuance in order to obtain the presence
of three necessary witnesses at trial. No written motion for
a continuance was filed. We acknowledged that oral or other
informal statements are obviously a poor procedure when
speedy trial rights are involved. Id. however, after analyz-
ing cases from other jurisdictions, we concluded that it is not
error for a trial court to grant a prosecutor an oral motion
for a continuance under § 29-1207(4) even though the only
showing is by the oral statements of the prosecutor when the
defendant and his or her counsel are present and do not object
on the record to the oral motion and showing, and where the
facts as stated by the prosecutor would be sufficient if they
had been contained in an affidavit or otherwise made under
oath. State v. Roundtree, supra. The Roundtree court then pro-
ceeded to consider whether the facts in the record and in the
STATe v. ShIpLeR 	71
Cite as 17 Neb. App. 66

prosecutor’s statement were sufficient to satisfy the elements
of § 29-1207(4)(c)(i).
In the instant case, the State did not include affidavits with
its written motion, but Shipler did not specifically object to
the State’s showing at the hearing; rather, he objected to the
continuance in general. Moreover, although the prosecutor did
not formally seek leave to present oral testimony, such leave
was impliedly given by the district court when the court itself
elicited the prosecutor’s testimony. In light of our holding in
State v. Roundtree, supra, we conclude that the method by
which the State sought a continuance, although not ideal, is
not in itself a sufficient basis for finding error in the granting
of the continuance. Accordingly, we will proceed to consider
whether the facts in the record and the facts in the prosecutor’s
statement are sufficient to satisfy the elements of the relevant
subsection of § 29-1207(4). In doing so, we will not consider
any statements of the trial judge made at the hearing on the
State’s motion for continuance. See, State v. Baird, 259 Neb.
245, 609 N.W.2d 349 (2000) (holding that statements of judge
could not be used to show good cause under § 29-1207(4)(f));
State 	v. 	Roundtree, 	supra 	(ignoring 	statements 	made 	by
judge in appellate court’s analysis of excludable time under
§ 29-1207(4)(c)(i)).
As to the relevant subsection of § 29-1207(4), Shipler argues
that the correct subsection is § 29-1207(4)(c)(i) rather than
§ 29-1207(4)(f). We agree. Section 29-1207(4) provides that
the following periods shall be excluded in computing the time
for trial:
(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 unavail-
ability of evidence material to the [S]tate’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
. . . .
(f) Other periods of delay not specifically enumer-
ated herein, but only if the court finds that they are for
good cause.
72 	17 NebRASKA AppeLLATe RepORTS

Although the State’s motion requested a continuance “for good
cause,” the prosecutor and the court used the phrase “good
cause” at the hearing on the State’s motion, and the court’s
docket entry and order stated that it had granted the State a
continuance for good cause shown, we take these references
to “good cause” as references to the “good cause” requirement
in § 29-1206 (in criminal cases, district court grants continu-
ance only upon showing of good cause and only for so long
as is necessary) rather than as a reference to § 29-1207(4)(f).
Section 29-1207(4)(f) applies to “[o]ther periods of delay not
specifically enumerated,” while § 29-1207(4)(c)(i) applies to
periods of delay resulting from a continuance granted at the
request of the prosecuting attorney, if “[t]he continuance is
granted because of the unavailability of evidence material to
the [S]tate’s case.” The State’s motion alleged the unavailabil-
ity of a witness, and at the hearing on the State’s motion, the
prosecutor indicated that this was a “key witness.” because the
period of delay sought by the State’s motion falls under the
period “specifically enumerated” in § 29-1207(4)(c)(i), that
section is the applicable section for purposes of our speedy
trial analysis.
[5] We next turn our attention to whether the facts in the
record and the prosecutor’s statement at the May 9, 2007, hear-
ing were sufficient to satisfy the elements of § 29-1207(4)(c)(i).
At the hearing, the prosecutor indicated that one of its key
witnesses was out of state, in Washington, D.C., and was
unavailable for trial. Upon questioning by the district court,
the prosecutor indicated that the unavailable witness was an
Investigator Martins, who had conducted an interrogation of
Shipler together with an Investigator Teuscher, and that Shipler
had confessed to both investigators. The prosecutor did noth-
ing to explain why Martins’ testimony was material in light
of the confession to both Martins and Teuscher. Nor did the
prosecutor make any showing that the State had exercised due
diligence to obtain Martins’ presence for the trial which had
been scheduled for May 9 since March 9. The prosecutor gave
no indication of why Martins was unavailable other than stat-
ing that he was in Washington, D.C., and gave no explanation
of steps the State had taken to obtain Martins’ presence on
STATe v. ShIpLeR 	73
Cite as 17 Neb. App. 66

May 9. Finally, the record does nothing to provide reasonable
grounds to believe that Martins would be available at the later
date. The prosecutor did not indicate how long Martins was
to be in Washington, D.C., or when he might be expected to
return. In short, the State did not put forth evidence supporting
these factors and failed to meet its burden at the hearing on
the motion for discharge to demonstrate that the time attribut-
able to its motion for continuance should be excluded from
the speedy trial calculation. The burden of proof is upon the
State to show that one or more of the excluded time periods
under § 29-1207(4) are applicable when the defendant is not
tried within 6 months. See State v. Sommer, 273 Neb. 587, 731
N.W.2d 566 (2007). Accordingly, the district court’s finding
that this period of delay is excludable was clearly erroneous.
Speedy Trial Calculation.
[6,7] Section 29-1207 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.
Washington, 269 Neb. 728, 695 N.W.2d 438 (2005). To calcu-
late the time 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 § 29-1207(4)
to determine the last day the defendant can be tried. State v.
Sommer, supra.
before calculating the time for speedy trial purposes, we
note that the State argues that the record before us reflects that
the speedy trial clock had not expired before Shipler filed his
motion to discharge. The State alleges that according to docket
notes, Shipler made a motion for discovery and review of
videotapes at a pretrial hearing on July 25, 2006, and that the
motion was never ruled upon, therefore resulting in 468 exclud-
able days. however, a review of the docket notes, together with
the State’s objection to the motion to discharge and the court’s
order denying the motion to discharge, make it clear that the
court treated the July 25 motion for discovery and review of
videotapes as a motion to continue the pretrial hearing, which
motion was ruled upon on July 25, whereby the pretrial hearing
74 	17 NebRASKA AppeLLATe RepORTS

was continued until August 23. Therefore, the record demon-
strates that the matter was ruled upon and the State’s argument
in this regard is without merit.
The 	original 	information 	was 	filed 	on 	May 	24, 	2006.
excluding the day of the filing of the information, counting
forward 6 calendar months and backing up 1 day, the last day
that the State had to bring Shipler to trial was November 24.
The first excludable time period began the day after Shipler
filed a motion to quash on June 9, 2006, which was ruled on by
the district court on June 19, resulting in 10 excludable days.
See State v. Feldhacker, 267 Neb. 145, 672 N.W.2d 627 (2004)
(excludable period under § 29-1207(4)(a) commences on day
immediately after filing of defendant’s pretrial motion). There
are 29 excludable days attributable to Shipler’s motion to con-
tinue the pretrial hearing from July 25 to August 23 (counting
from July 26, the day immediately following Shipler’s motion,
through August 23, the date of the rescheduled hearing). On
August 23, Shipler filed a motion to suppress and a motion in
limine, which motions were denied by the court on November
21. This resulted in a total of 90 excludable days (counting
from August 24 through November 21).
On February 7, 2007, Shipler orally sought a continuance,
and the trial date was continued to March 14. We note that
Shipler filed a written motion to continue on February 9 and
that in his own calculations, Shipler began calculating the time
attributable to this continuance from February 10 rather than
from February 8. We have excluded 35 days in connection with
this continuance (counting from February 8 through March
14). An additional 56 days are excludable based on Shipler’s
motion to continue made on March 9 (counting from March
15, the day after the end of the previously excluded period,
through May 9, the rescheduled trial date). Finally, there are
25 excludable days attributable to the motion in limine filed on
July 2 by Shipler and ruled on by the court on July 27 (count-
ing from July 3 through 27). Accordingly, there are a total of
245 excludable days.
Adding the 245 excludable days to November 24, 2006,
brings us to July 27, 2007. Shipler filed his motion to discharge
on speedy trial grounds on September 4. Accordingly, the
STATe v. ShIpLeR 	75
Cite as 17 Neb. App. 66

district court was clearly erroneous in denying Shipler’s motion
for discharge.
CONCLUSION
The district court was clearly erroneous in finding that
Shipler’s statutory right to a speedy trial was not violated. We
reverse the court’s order denying Shipler’s motion for absolute
discharge and remand the matter to the court with directions to
dismiss the information against Shipler.
reversed and remanded With
directiOns tO dismiss .
76 	17 NebRASKA AppeLLATe RepORTS