State v. Vasquez

drink and drive, despite having obtained treatment on a number
of occasions, having been fined and placed on probation, and
having had his license suspended. We conclude that the sentence
imposed by the district court is excessively lenient.
CONCLUSION
We determine that the district court imposed an excessively
lenient sentence upon Hatt. Under Neb. Rev. Stat. § 29-2323
(Reissue 1995), when an appellate court determines that a sen-
tence imposed is excessively lenient, it shall either (1) remand
the cause for imposition of a greater sentence, (2) remand
the cause for further sentencing proceedings, or (3) impose a
greater sentence. Under § 29-2323(1)(a), we vacate the sen-
tence and remand the cause to the district court with instruc-
tions to impose a greater sentence. The sentence should be
imposed by a different district court judge than the original
sentencing judge.
S entence vacated , and cauSe
remanded for reSentencing .
S tate of nebraSka , appellee , v . ronnie vaSquez ,
alSo known aS ronald vaSquez , appellant .
744 N.W.2d 500
Filed February 12, 2008. 	No. A-07-028.
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. Neb. Rev. Stat. § 29-1207 (Reissue 1995) requires that a defendant
be 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.
4. ____. 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.
406 	16 NebRASkA AppeLLATe RepORTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:17 AM CST

5. Speedy Trial: Proof. The burden of proof is upon the State that one or more of
the excluded time periods under Neb. Rev. Stat. § 29-1207(4) (Reissue 1995) is
applicable when the defendant is not tried within 6 months.
6. ____: ____. To overcome a defendant’s motion for discharge on speedy trial
grounds, the State must prove the existence of an excludable period by a prepon-
derance of the evidence.
7. Speedy Trial: Pretrial Procedure: Motions to Suppress. Neb. Rev. Stat.
§ 29-1207(4)(a) (Reissue 1995) excludes from speedy trial calculations the time
from filing until final disposition of pretrial motions by the defendant, including
motions to suppress.
8. Speedy Trial: Pretrial Procedure. Where a motion to discharge on speedy
trial grounds is submitted to a trial court, the excludable period attributable to a
defendant’s pretrial motion is calculated from the date the motion is filed until the
date the motion is granted or denied.
9. Speedy Trial: Words and Phrases. A “proceeding,” as used in the speedy trial
statute provision governing delay resulting from proceedings concerning the
defendant, is, in a more particular sense, any application to a court of justice, how-
ever made, for aid in the enforcement of rights, for relief, for redress of injuries,
for damages, or for any remedial object.
10. ____: ____. The term “proceeding,” as used within Neb. Rev. Stat. § 29-1207(4)(a)
(Reissue 1995), must be read narrowly.
11. Speedy Trial: Good Cause. Under Neb. Rev. Stat. § 29-1207(4)(f) (Reissue
1995), time may be excluded for a period of delay where good cause is shown.
12. ____: ____. Under a plain reading of Neb. Rev. Stat. § 29-1207(4)(f) (Reissue
1995), before an evaluation for good cause need be made, there must first be a
“period of delay.”
13. ____: ____. If a trial court relies on Neb. Rev. Stat. § 29-1207(4)(f) (Reissue
1995) in excluding a period of delay from the 6-month computation, a general
finding of good cause will not suffice and the trial court must make specific find-
ings as to the good cause or causes which resulted in the extensions of time.
14. Appeal and Error. When a trial court’s findings are incomplete, an appellate
court must remand the cause for further consideration.
15. ____. An appellate court is not obligated to engage in an analysis that is not
needed to adjudicate the controversy before it.
Appeal from the District Court for buffalo County: J ohn p.
icenogle, Judge. Reversed and remanded with directions.
Stephen G. Lowe for appellant.
Jon bruning, Attorney General, and kimberly A. klein for
appellee.
inbody, Chief Judge, and carlSon and caSSel, Judges.
STATe v. vASqUez 	407
Cite as 16 Neb. App. 406

caSSel, Judge.
INTRODUCTION
Ronnie vasquez, also known as Ronald vasquez, appeals
from an order overruling his motion for discharge, based upon
his statutory right to a trial within 6 months and his federal
and state constitutional rights to a speedy trial. The ultimate
question is whether any periods of time are excludable because
vasquez failed to fulfill a plea bargain. because the district
court failed to make sufficient findings, we reverse, and remand
with directions.
bACkGROUND
The State charged vasquez with possession of a controlled
substance with intent to deliver. The information was filed on
August 16, 2006. Subsequently, vasquez entered a plea of not
guilty. On November 28, vasquez filed a motion for absolute
discharge, premised both on Neb. Rev. Stat. §§ 29-1207 and
29-1208 (Reissue 1995) and on his state and federal constitu-
tional rights to a speedy trial.
On November 30, 2006, the district court conducted a hear-
ing on the motion for absolute discharge. The evidence con-
sisted solely of exhibits, primarily the district court case files
of the instant case and an earlier prosecution. The court took
the motion under advisement. At the conclusion of the hearing,
vasquez, who was then scheduled for jury trial on the following
Monday, elected to waive his right to trial by jury.
On December 4, 2006, the matter proceeded to a bench trial.
before commencing the trial, the court announced its decision
overruling the speedy trial motion and pronounced specific find-
ings, which we now summarize. At the time of vasquez’ arrest,
he was informed that the State intended to charge him with
possession of a controlled substance with intent to distribute.
The State offered to reduce the charge to simple possession and
to recommend vasquez for rehabilitative programs in exchange
for vasquez’ providing information concerning other investiga-
tions. vasquez agreed. The State filed the first case, district
court case No. CR05-152, in compliance with the agreement.
The State complied with its portion of the agreement, as did
vasquez, until he was arraigned on February 10, 2006. At that
408 	16 NebRASkA AppeLLATe RepORTS

time, however, vasquez entered a plea of not guilty. The charge
in case No. CR05-152 was dismissed on May 26. The case now
being appealed, district court case No. CR06-91, was then filed,
as noted above, on August 16. The district court found that
the time periods involved in the two cases must be considered
together for purposes of speedy trial. The court stated, “based
upon the plea agreement and the change of heart, at the time
the motion for discharge was filed, more than 187 days have
elapsed.” The court found that the period of time from the with-
drawal from the agreement by vasquez until the time the new
information was filed was excludable. The court also excluded
the period of time that elapsed between the making of the agree-
ment and the withdrawal from the agreement.
We return to the proceedings on December 4, 2006. After
the court announced its decision on the motion for discharge,
vasquez’ counsel elected to “stand basically on the motion for
discharge” and informed the court that vasquez would enter
into a stipulation that would acknowledge or admit facts suf-
ficient to constitute a conviction “[a]nd then we’ll proceed with
the appeal . . . .” vasquez’ counsel requested a continuance to
enable vasquez to file an appeal, which motion the court over-
ruled, finding that “the ruling on the application for discharge
is not a final order.”
The prosecutor then proposed a factual stipulation and offered
exhibits. vasquez made no objection to the exhibits, which were
received, and accepted the prosecutor’s stipulation. The court
noted that throughout the proceedings, the State had agreed
that vasquez was preserving his right to challenge the court’s
ruling on the motion for discharge. based upon the stipulated
evidence, the court found vasquez guilty and scheduled the mat-
ter for sentencing on January 5, 2007. The court also ordered a
presentence investigation.
On January 3, 2007, vasquez filed his first notice of appeal,
which was docketed in this court as the instant case.
Despite the pendency of the instant appeal, the district court
conducted further proceedings, ultimately leading to the imposi-
tion of a sentence on January 25, 2007. vasquez filed a second
notice of appeal, and we have previously, by memorandum
opinion, disposed of the second appeal. See State v. Vasquez,
STATe v. vASqUez 	409
Cite as 16 Neb. App. 406

ante p. xxi (No. A-07-184, Oct. 11, 2007). We determined that
the district court lacked jurisdiction to proceed with sentencing
and that its judgment was void. Accordingly, we vacated the
void judgment but also determined that because of the pendency
of the instant appeal, it was not yet appropriate to remand the
cause to the district court for resentencing.
ASSIGNMeNTS OF eRROR
vasquez assigns four errors, the first three of which, restated,
assert that the district court erred in excluding certain time
periods from the statutory speedy trial calculations, in failing
to sustain his motion for absolute discharge, and in denying his
state and federal constitutional rights to a speedy trial.
While vasquez also assigns that the court erred in receiv-
ing into evidence a videotape of the police interviews, he did
not argue this matter in his brief, and we decline to address it
further. To be considered by an appellate court, an alleged error
must be both specifically assigned and specifically argued in
a party’s brief. State v. McKinney, 273 Neb. 346, 730 N.W.2d
74 (2007).
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. Rieger, 270 Neb. 904, 708 N.W.2d
630 (2006).
ANALYSIS
Statutory Speedy Trial Calculations Before Exclusions.
vasquez asserts that the district court erred in overruling his
motion to discharge, because the court erred in excluding cer-
tain time periods. before reaching his specific arguments, we
perform the initial calculations in light of the Nebraska statu-
tory speedy trial jurisprudence.
410 	16 NebRASkA AppeLLATe RepORTS

[3,4] Section 29-1207 requires that a defendant be tried
within 6 months after the filing of the information, unless the 6
months are extended by any period to be excluded in comput-
ing the time for trial. State v. Sommer, supra. If a defendant is
not brought to trial before the running of the time for trial, as
extended by excluded periods, he or she shall be entitled to an
absolute discharge from the offense charged. Id. 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 § 29-1207(4)
to determine the last day the defendant can be tried. State v.
Sommer, supra.
The district court found, and neither party disputes, that the
periods during which the two informations were pending must
be combined in determining the last day for commencement of
trial under the speedy trial act. See, State v. French, 262 Neb.
664, 633 N.W.2d 908 (2001); State v. Trammell, 240 Neb. 724,
484 N.W.2d 263 (1992); State v. Sumstine, 239 Neb. 707, 478
N.W.2d 240 (1991). In State v. Sumstine, supra, the Nebraska
Supreme Court explained the rationale of tacking and the tolling
approach—to prevent the State from undermining or subverting
implementation of the speedy trial act. Under this approach,
the calculation begins with the filing of the first information.
During the period between dismissal of the first information and
filing of the second information, the speedy trial time is tolled.
The time resumes upon filing of the second information, includ-
ing the day of its filing. See id.
The first information against vasquez was filed on December
23, 2005. For the moment disregarding time periods excludable
under § 29-1207(4) and the tolling during dismissal, the last
day the State could have brought vasquez to trial would have
been June 23, 2006.
The time chargeable to the State ceases, or is tolled, during
the interval between the State’s dismissal of the initial informa-
tion and the filing of the second information. See State v. French,
supra. The first information against vasquez was dismissed on
May 26, 2006, and the second information was filed on August
16. because both May 26 and August 16 are chargeable to the
State, the period excluded by tolling is 81 days. After adding
STATe v. vASqUez 	411
Cite as 16 Neb. App. 406

this period, but not yet considering any excludable periods, the
last date for commencement of trial was extended to September
12. We now turn to consideration of excludable time.
Uncontested Excludable Periods.
[5,6] The burden of proof is upon the State that one or more
of the excluded time periods under § 29-1207(4) is appli-
cable when the defendant is not tried within 6 months. State v.
Sommer, 273 Neb. 587, 731 N.W.2d 566 (2007). 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. Id.
In the statement of facts in vasquez’ brief, he acknowledges
that in the first prosecution, he filed a motion to suppress on
March 17, 2006, and that the motion remained undisposed at
the time of the State’s dismissal. He implicitly concedes that
this period is excludable.
[7] Section 29-1207(4)(a) excludes from speedy trial calcu-
lations the time from filing until final disposition of pretrial
motions by the defendant, including motions to suppress. State
v. Dockery, 273 Neb. 330, 729 N.W.2d 320 (2007). The 70-day
period from March 17, 2006, to May 26, is clearly excludable
under § 29-1207(4)(a). After adding 70 days to September
12, the last day for commencement of trial would have been
Tuesday, November 21. vasquez’ motion for discharge was
filed 7 days after the last day for commencement of trial, unless
there were other excludable periods.
[8] Further, neither party disputes that when vasquez filed
his motion for absolute discharge, the speedy trial clock, if it
had not already expired, again stopped. Where a motion to dis-
charge on speedy trial grounds is submitted to a trial court, the
excludable period attributable to a defendant’s pretrial motion
is calculated from the date the motion is filed until the date
the motion is granted or denied. See State v. Recek, 263 Neb.
644, 641 N.W.2d 391 (2002), disapproved in part on other
grounds, State v. Feldhacker, 267 Neb. 145, 672 N.W.2d 627
(2004). Thus, the period from November 28, 2006, when the
motion was filed, to December 4, when the motion was over-
ruled, is excluded under § 29-1207(4)(a). because the trial was
412 	16 NebRASkA AppeLLATe RepORTS

then immediately held on December 4, the question becomes
whether there is any other excludable period of at least 7 days.
We now examine the additional periods of exclusion found by
the district court.
Exclusion Relating to Plea Bargain.
The district court specifically found that two periods were
excludable: (1) from the date of the plea agreement to the entry
of the plea of not guilty in the first prosecution and (2) from the
date of the not guilty plea in the first prosecution to the filing
of the second prosecution. The district court did not articulate
the statutory basis of such exclusions.
Several portions of these periods are not chargeable or
excludable for reasons unrelated to the existence of a plea bar-
gain. First, the plea agreement was reached prior to the filing
of the first information. However, the speedy trial clock did
not begin to run until the first information was filed. Thus, the
period from the date of the plea agreement to the date of fil-
ing of the first information is not an excludable or chargeable
period—it is simply irrelevant to the statutory speedy trial cal-
culation. Second, as we explained above, the speedy trial time
is tolled during the period between the dismissal of the first
information and the filing of the second information. Third,
the period relating to vasquez’ motion to suppress has already
been excluded.
As a result, insofar as the plea bargain is concerned, we
consider two periods: (1) from the filing of the first informa-
tion (December 23, 2005) to the date of entry of the plea of
not guilty (February 10, 2006) and (2) from the date of the
plea to the date of filing of the motion to suppress (March 17).
These represent periods of 49 days and 35 days, respectively.
We now consider the district court’s factual findings regarding
an agreement.
The district court described the agreement as a “plea agree-
ment” and found that the first prosecution proceeded “with the
State complying with its portion of the agreement, and . . .
vasquez in fact performing his side of the agreement through
the time of arraignment.” vasquez argues that there was no plea
agreement but also argues that “[t]he bargaining positions were
STATe v. vASqUez 	413
Cite as 16 Neb. App. 406

clearly unequal and [vasquez] thought he was bargaining for
and receiving a free pass when in fact he was told later he had
agreed to plead guilty to a reduced charge . . . .” brief for appel-
lant at 14-15. The State concedes that vasquez’ agreement to
plead guilty to a reduced charge was implied—acknowledging
that “the words ‘you have to plead to the simple possession
charge’ do not appear on the tape” and arguing that it was
“obvious to everyone involved that a guilty plea to that charge
was contemplated by all, as the [S]tate would not be able to
recommend a sentence of probation if there is not a conviction
on file.” brief for appellee at 8. We determine that the court’s
factual findings that there was a plea agreement and that both
parties complied until the time of arraignment in the first pros-
ecution are not clearly erroneous. We next consider the statutory
basis for any further exclusion.
The State argues that § 29-1207(4)(a) provides the basis for
exclusion, relying upon the language excluding the “period of
delay resulting from other proceedings concerning the defend-
ant.” putting aside for the moment whether the State proved
that there was a “period of delay,” we reject the State’s reliance
upon § 29-1207(4)(a), because the plea agreement was not a
“proceeding” within the meaning of the subsection.
[9] A “proceeding,” as used in the speedy trial statute provi-
sion governing delay resulting from proceedings concerning
the defendant, is, in a more particular sense, any 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. See State v. Murphy, 255 Neb. 797, 587
N.W.2d 384 (1998).
[10] The term “proceeding” must be read narrowly. Id. In
State v. Murphy, the Nebraska Supreme Court explained that
to the extent the parties relied on their own devices to secure
necessary depositions, the taking of the depositions was not a
“proceeding” within the meaning of § 29-1207(4)(a). We think
that a plea bargain not entered into on the record before any
court or tribunal, but, rather, made during private negotiations
between the parties, is analogous to the private devices utilized
to secure depositions.
414 	16 NebRASkA AppeLLATe RepORTS

In the instant case, the plea bargain made at the time of arrest
clearly falls outside the definition of a “proceeding.” The plea
agreement was made prior to the commencement of any court
proceeding. It certainly began as a purely private arrangement
between the parties. As the Nebraska Supreme Court explained
in State v. Murphy, “[i]f the term ‘proceedings’ was read
broadly, rather than in its ‘particular sense,’ § 29-1207(4)(a)
would include any delay at trial that ‘concerns’ the defendant.”
255 Neb. at 803, 587 N.W.2d at 389.
[11,12] Thus, it appears that the basis for exclusion must
be found, if at all, in the catchall exclusion for “good cause”
provided by § 29-1207(4)(f). Under § 29-1207(4)(f), time may
be excluded for a period of delay where good cause is shown.
State v. Covey, 267 Neb. 210, 673 N.W.2d 208 (2004). Under a
plain reading of § 29-1207(4)(f), before an evaluation for good
cause need be made, there must first be a “period of delay.”
State v. Covey, supra. The district court did not make any find-
ings relating to § 29-1207(4)(f).
[13] We think it is conceivable that, in theory, the conduct of
parties relating to a plea bargain could constitute good cause for
delay under § 29-1207(4)(f). but we are precluded from reach-
ing this issue in the case before us by the absence of findings
by the district court. “‘[I]f a trial court relies on § 29-1207(4)(f)
in excluding a period of delay from the 6-month computation,
a general finding of “good cause” will not suffice and the
trial court must make specific findings as to the good cause
or causes which resulted in the extensions of time.’” State v.
Murphy, 255 Neb. at 804, 587 N.W.2d at 389, quoting State
v. Kinstler, 207 Neb. 386, 299 N.W.2d 182 (1980). See, also,
State v. Alvarez, 189 Neb. 281, 202 N.W.2d 604 (1972).
[14] In the instant case, the district court made certain find-
ings of historic fact, but the court did not make any finding
regarding the causal connection, if any, between the plea bargain
and any delay in the subsequent proceedings. Indeed, the court’s
findings did not identify a specific delay, but simply excluded
certain broad periods of time, parts of which were irrele-
vant to the speedy trial calculation or already excluded under
§ 29-1207(4)(a). When a trial court’s findings are incomplete, an
STATe v. vASqUez 	415
Cite as 16 Neb. App. 406

appellate court must remand the cause for further consideration.
State v. Murphy, 255 Neb. 797, 587 N.W.2d 384 (1998).
Constitutional Right to Speedy Trial.
[15] vasquez also argues that his constitutional right to a
speedy trial was violated. An appellate court is not obligated to
engage in an analysis that is not needed to adjudicate the con-
troversy before it. State v. Sommer, 273 Neb. 587, 731 N.W.2d
566 (2007). Therefore, we do not address this issue.
CONCLUSION
We conclude that the district court erred in excluding any
time periods relating to the plea bargain under § 29-1207(4)(a).
even if such periods may be excluded under § 29-1207(4)(f),
the district court made no findings in that regard. Accordingly,
we reverse, and remand with directions to the district court
to determine whether, based on the existing record, the State
proved by a preponderance of the evidence that the time from
the filing of the first information to the entry of the plea of not
guilty or the time from the entry of the plea to the filing of
the motion to suppress, or both, is excludable for good cause,
supported by specific findings.
reverSed and remanded with directionS.
416 	16 NebRASkA AppeLLATe RepORTS