State v. Curry

and that Christian did not show any indications of lacking any
proper nutrition.
A review of the record in this case makes it clear the State
focused on demonstrating that Peggy had an extremely clut-
tered house and suffered from some mental health issues and
that Christian was, accordingly, at risk of harm. The State failed
to prove by a preponderance of the evidence that Christian was
at risk or lacked proper parental care through Peggy’s fault.
We therefore direct that the juvenile court dismiss the proceed-
ings, but that such dismissal shall be without prejudice to any
new proceedings if the facts at the time of the filing of new
proceedings justify such proceedings and if the allegations
properly provide Peggy with due process.
R eveRsed and Remanded with
diRections to dismiss.
state of nebRaska , appellee , v.
Joshua cuRRy, appellant.
790 N.W.2d 441
Filed February 23, 2010. 	No. A-09-536.
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: Appeal and Error. On a question of law, an appellate court is
obligated to reach a conclusion independent of the determination reached by the
court below.
3. Speedy Trial: Proof. The State has the burden of proving that one or more of
the excluded periods of time under Neb. Rev. Stat. § 29-1207(4) (Reissue 1995)
are applicable if the defendant is not tried within 6 months of the filing of the
information in a criminal action.
4. Speedy Trial: Indictments and Informations: Time. Nebraska’s speedy trial
statutes provide in part that every person indicted or informed against for any
offense shall be brought to trial within 6 months, and such time shall be com-
puted as provided in those statutes.
5. Speedy Trial: Indictments and Informations. 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 com-
plaint is filed.
6. Speedy Trial. Certain periods of delay are excluded from the speedy trial com-
putation, including (1) the period of delay resulting from other proceedings
284 	18 NebRASkA APPellATe RePORTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:13 AM CST

concerning the defendant, including but not limited to the time from filing until
final disposition of pretrial motions of the defendant, including motions to sup-
press evidence, motions to quash the indictment or information, demurrers, and
pleas in abatement, and (2) the period of delay resulting from a continuance
granted at the request or with the consent of the defendant or his counsel.
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.
8. Speedy Trial: Pretrial Procedure. The plain terms of Neb. Rev. Stat.
§ 29-1207(4)(a) (Reissue 1995) exclude 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. Such motions include a defendant’s
motion to suppress evidence and a motion for discovery filed by the defendant.
9. ____: ____. In a speedy trial analysis under Neb. Rev. Stat. § 29-1207(4)(a)
(Reissue 1995), the excludable period commences on the day immediately after
the filing of a defendant’s pretrial motion.
10. ____: ____. Final disposition under Neb. Rev. Stat. § 29-1207(4)(a) (Reissue
1995) occurs on the date the defendant’s motion is granted or denied.
11. Speedy Trial: Pretrial Procedure: Presumptions. Pursuant to Neb. Rev. Stat.
§ 29-1207(4)(a) (Reissue 1995), it is presumed that a delay in hearing defense
pretrial motions is attributable to the defendant unless the record affirmatively
indicates otherwise.
12. Speedy Trial: Indictments and Informations: Time. The time chargeable to the
State ceases to run or is tolled during the interval between the State’s dismissal of
an initial information and the filing of a second information charging the defend-
ant with the same crime as alleged in the dismissed information.
13. ____: ____: ____. When two successive informations charge a defendant with the
same crime, the time which runs on the speedy trial clock while the first informa-
tion is pending must be combined with the calculations of includable and exclud-
able time during the pendency of the second information, before the motion to
discharge is filed, in order to determine whether the allowable time under the
speedy trial act has run.
14. Speedy Trial: Waiver. The statutory right to a speedy trial is not a personal right
that can be waived only by a defendant.
15. Speedy Trial: Pretrial Procedure: Attorneys at Law. Defense counsel’s motions
to withdraw are pretrial motions tolling the speedy trial clock; the speedy trial
clock is tolled from when a motion to withdraw is made until new counsel
is appointed.
16. Courts: Speedy Trial. Trial courts are to make specific findings in order to
facilitate appellate review of all determinations of excludable periods under Neb.
Rev. Stat. § 29-1207(4) (Reissue 1995).
17. Speedy Trial: Indictments and Informations: Dismissal and Nonsuit. The
speedy trial clock cannot run past the date that the information was dismissed.
18. Speedy Trial: Appeal and Error. The speedy trial clock remains tolled until a
motion to discharge is finally resolved, including during an appeal until action is
taken on the appellate court’s mandate.
STATe v. CuRRy 	285
Cite as 18 Neb. App. 284

Appeal from the District Court for Cheyenne County: deRek
c. weimeR, Judge. Affirmed as modified.
James 	R. 	Mowbray 	and 	kelly 	S. 	breen, 	of 	Nebraska
Commission on Public Advocacy, for appellant.
Jon bruning, Attorney General, and Stacy M. Foust for
appellee.
sieveRs, caRlson, and mooRe, Judges.
sieveRs, Judge.
I. INTRODuCTION
On February 27, 2007, Joshua Curry was charged with first
degree sexual assault under Neb. Rev. Stat. § 28-319(1)(c)
(Reissue 1995), a Class II felony. The information alleged that
Curry, being more than 19 years of age, did subject k.b., who
was less than 16 years of age, to sexual penetration on July 1,
2006, in Cheyenne County, Nebraska. upon the State’s motion,
this information was dismissed without prejudice on July 25,
2007. For convenience, this information shall be referred to
hereinafter as the “first information.”
On January 8, 2009, a complaint was filed in Cheyenne
County Court charging Curry with the same offense as charged
in the first information. On January 15, a preliminary hearing
was held. Curry was bound over to the Cheyenne County
District Court, and an information was filed on January 20.
This information shall hereinafter be referred to as the “sec-
ond information.” On March 6, Curry filed a motion to dis-
charge under Nebraska’s speedy trial act, which motion the
district court denied on May 27. Two days later, Curry filed
a notice of appeal to this court from the denial of his motion
to discharge.
The ultimate question in this appeal is whether the 6 months
in which to bring Curry to trial on the charge of first degree
sexual assault had run when he filed his motion to discharge
on March 6, 2009, after excludable time periods and periods in
which the speedy trial statutes were tolled are calculated. We
find that the time in which to bring Curry to trial had not run,
286 	18 NebRASkA APPellATe RePORTS

and thus, we affirm the district court’s denial of the motion to
discharge, but we modify the calculation of the days remaining
on the speedy trial clock as explained below.
II. ASSIGNMeNT OF eRROR
Curry’s single assignment of error is that “the [district]
court erred in finding that time periods which caused no delay
should count against [him] and be excluded from the statutory
speedy trial computation” by application of Neb. Rev. Stat.
§ 29-1207(4)(a) and (b) (Reissue 1995).
III. STANDARD OF ReVIeW
[1,2] 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. Williams, 277 Neb. 133, 761 N.W.2d
514 (2009). On a question of law, an appellate court is obli-
gated to reach a conclusion independent of the determination
reached by the court below. State v. Molina, 271 Neb. 488, 713
N.W.2d 412 (2006).
IV. PROCeDuRAl AND FACTuAl
bACkGROuND
This case, like most speedy trial appeals, involves the detail-
ing of a variety of procedural events and motions during the
course of the prosecution of a case and application of largely
well-established principles under Nebraska’s speedy trial act to
determine periods of time which are excluded from the speedy
trial clock. This case is somewhat more involved because the
first information was dismissed, and then a second information
alleging the same crime was refiled. We believe that it is most
efficient to recite the pertinent procedural events in the analysis
section of our opinion.
V. ANAlySIS
1. G eneRal pRinciples of law foR
speedy tRial analysis
[3-11] We begin by first setting forth the fundamental prin-
ciples of law which govern our analysis, the first of which is
STATe v. CuRRy 	287
Cite as 18 Neb. App. 284

that the State has the burden of proving that one or more of the
excluded periods of time under § 29-1207(4) are applicable if
the 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). The Nebraska Supreme Court has con-
veniently set forth additional applicable principles in its recent
opinion in State v. Williams, which we quote:
Nebraska’s speedy trial statutes provide in part that
“[e]very 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.”
Where a felony offense is involved, the 6-month speedy
trial period commences to run from the date the indict-
ment is returned or the information filed, and not from the
time the complaint is filed. Certain periods of delay are
excluded from the speedy trial computation, including:
“(a) The period of delay resulting from other proceedings
concerning the defendant, including but not limited to
. . . 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 . . . . (b) The period of
delay resulting from a continuance granted at the request
or with the consent of the defendant or his counsel.” 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 defend-
ant can be tried.
The plain terms of § 29-1207(4)(a) exclude 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. Such motions
include a defendant’s motion to suppress evidence and a
motion for discovery filed by the defendant. The exclud-
able period commences on the day immediately after the
filing of a defendant’s pretrial motion. Final disposition
under § 29-1207(4)(a) occurs on the date the motion is
“‘“granted or denied.”’” Pursuant to § 29-1207(4)(a), it is
288 	18 NebRASkA APPellATe RePORTS

presumed that a delay in hearing defense pretrial motions
is attributable to the defendant unless the record affirma-
tively indicates otherwise.
277 Neb. at 140-41, 761 N.W.2d at 522.
2. tReatment of successive infoRmations
chaRGinG same cRime
[12,13] This case involves a dismissed information, followed
by a lapse of nearly 18 months before the filing of the second
information charging Curry with the identical crime. It is clear
that the time chargeable to the State ceases to run or is tolled
during the interval between the State’s dismissal of the initial
information and the filing of the second information charging
the defendant with the same crime as alleged in the dismissed
information. See State v. French, 262 Neb. 664, 633 N.W.2d
908 (2001). Thus, when the first information against Curry was
dismissed without prejudice on July 25, 2007, and a second
information charging the same crime was filed on January 20,
2009, the running of the speedy trial clock between those two
dates was tolled, and this timeframe is not chargeable to the
State. However, French, supra, makes it clear that the time
which ran on the speedy trial clock while the first information
was pending must be combined with the calculations of includ-
able and excludable time during the pendency of the second
information, before the motion to discharge was filed, in order
to determine whether the allowable time under the speedy trial
act has run.
The original information in this case was filed on February
27, 2007. For speedy trial calculation purposes, we exclude the
day the information was filed, count forward 6 months, and
back up 1 day. State v. Williams, 277 Neb. 133, 761 N.W.2d
514 (2009). Therefore, under the first information, Curry had
to be tried by August 27. However, the first information was
dismissed on July 25, ending that prosecution. Thus, ignoring
excluded time periods for the moment, it is clear that the speedy
trial clock had not run when the second information charging
the same offense was filed January 20, 2009. Therefore, the
time period between the dismissal of the first information on
July 25, 2007, and the filing of the second information, using
STATe v. CuRRy 	289
Cite as 18 Neb. App. 284

January 19, 2009, as the last day, produces a total of 544
excluded days—and we have included in our calculation the
fact that 2008 was a leap year.
The trial court determined that there were 24 days excluded
from the speedy trial clock during the pendency of the first
information, plus 32 days remaining on the speedy trial clock
when the first information was dismissed on July 25, 2007.
Therefore, the trial court found that there were 56 days left on
the speedy trial clock when the second information was filed
on January 20, 2009.
3. fiRst infoRmation and speedy tRial clock
(a) Are Days excluded because of First
Counsel’s Motion to Withdraw?
While Curry’s single assignment of error can be seen as
overly generalized because it does not specify exactly how he
claims the trial court went astray in its calculation, the argu-
ment section of Curry’s brief does inform us of the portions of
the trial court’s calculation he alleges were error. With respect
to the first information, Curry argues that the trial court erred
when it found that 8 days were excludable due to the first
attorney’s motion to withdraw as counsel. We address this
argument first.
The record shows that Curry’s first attorney filed a motion
to withdraw on April 26, 2007, alleging simply that he “has a
conflict of interest in representing [Curry].” The trial court’s
journal entry of May 7 recites that a hearing was held on this
motion on May 4; that Curry was present, as was a deputy
county attorney; and that the first attorney appeared telephoni-
cally. The journal entry recites that the attorney represented
both Curry and another individual, that the two clients were
“involved in an altercation in jail,” and that as a result, the
attorney “believe[d] that he ha[d] a conflict in representing
either party, and wishe[d] to avoid any appearance of impropri-
ety due to representing either or both part[ies].” The trial court
granted the motion to withdraw. There is no record of what
was said at the hearing on May 4, beyond what can be gleaned
from the journal entry of May 7. On May 10, the trial court
appointed another lawyer to represent Curry.
290 	18 NebRASkA APPellATe RePORTS

[14] Curry’s basis for his claim that these 8 days were
wrongfully excluded by the trial court is that he “was without
counsel once counsel pursued motions to withdraw without [a]
sound basis.” brief for appellant at 6 (emphasis omitted). In
support of this claim, Curry cites us to State v. McHenry, 268
Neb. 219, 682 N.W.2d 212 (2004). In that case, the Supreme
Court cited Townsend v. Superior Court, 15 Cal. 3d 774, 543
P.2d 619, 126 Cal. Rptr. 251 (1975), in support of its finding
that it has been recognized that defense counsel’s authority
to waive a defendant’s statutory right to a speedy trial cannot
extend to excuse “‘“representation [that] is so ineffective that
it can be described as a ‘farce and a sham.’”’” McHenry, 268
Neb. at 232, 682 N.W.2d 225. Initially, we point out the fact
that obviously distinguishes Townsend, supra, from the instant
case—there is no waiver of the right to a speedy trial in Curry’s
case, and a waiver is different from calculating excluded time
periods. McHenry, supra, was a postconviction case in which
it was asserted that defense counsel was ineffective for filing
a motion that resulted in a 2-month continuance even though
the defendant refused to sign a waiver of speedy trial rights
as his trial counsel had requested. The Supreme Court, as a
predicate to the finding of no deficient performance of counsel,
said it is clear that the statutory right to a speedy trial is not
a personal right that can be waived only by a defendant. The
Supreme Court reasoned that the request for a continuance,
despite defendant’s objection to seeking such, was not the sort
of “farce or sham” representation that would result in the con-
tinuance time’s not being excluded from the speedy trial clock,
given that the continuance was for only 2 months in a complex
murder trial involving two codefendants.
We understand Curry’s application of McHenry, supra, to his
case to be that the motion of first defense counsel to withdraw,
for which the trial court found 8 excludable days, was a “farce
or sham” such that no excludable time should be charged to
Curry. We have set forth above what the record reveals about
the motion of Curry’s first attorney to withdraw. Curry argues,
as we understand it, that because the motion to withdraw was
without a sound basis and was a sham, Curry was without
counsel from the time the motion was made.
STATe v. CuRRy 	291
Cite as 18 Neb. App. 284

We reject the argument for several reasons. First, there is no
record of the hearing at which the motion was taken up, and
it is incumbent on Curry as the appellant to present a record
supporting his claim of error. Absent such, as a general rule,
the decision of the lower court will be affirmed. State v. Back,
241 Neb. 301, 488 N.W.2d 26 (1992). Second, the district
court’s recital of the reason for counsel’s request to withdraw
certainly does not allow us to conclude that the motion to
withdraw was a farce or sham such that the time for the resolu-
tion of the motion should not have been charged to Curry and
excluded from the speedy trial clock. The issue then becomes
simply whether a motion of defense counsel to withdraw is a
“period of delay resulting from other proceedings concerning
the defendant” under § 29-1207(4)(a) and is excluded from the
speedy trial clock.
In State v. Rieger, 13 Neb. App. 444, 695 N.W.2d 678 (2005),
we noted that the question of whether a motion of counsel to
withdraw because of a conflict should stop the running of the
speedy trial clock, and how any time would be calculated,
had not been addressed by either appellate court. While our
Rieger decision was rendered under the interstate Agreement
on Detainers requiring trial within 180 days, ultimately Rieger
helps answer the question posed above. In our Rieger decision,
we found as follows:
We now hold that such a motion does toll the run-
ning of the 180 days under the [interstate Agreement on
Detainers]. We think it obvious that as a matter of funda-
mental fairness, when a motion to withdraw is filed on the
ground that the defendant’s lawyer has a conflict of inter-
est, no action of consequence to the defendant can occur
in the pending case until the motion is resolved. Other
jurisdictions have held that counsel’s motions to withdraw
are pretrial motions tolling the speedy trial clock. See
U.S. v. Hammad, 902 F.2d 1062 (2nd Cir. 1990) (delay,
occasioned when court was informed by defense counsel
that he intended to withdraw as counsel, was excludable
under self-executing provision of federal speedy trial act
for delay resulting from pretrial motion). See, also, U.S.
v. Joost, 133 F.3d 125 (1st Cir. 1998); U.S. v. Parker, 30
292 	18 NebRASkA APPellATe RePORTS

F.3d 542 (4th Cir. 1994); U.S. v. Driver, 945 F.2d 1410
(8th Cir. 1991).
13 Neb. App. at 454-55, 695 N.W.2d at 687-88.
[15] The Nebraska Supreme Court granted a petition for
further review of our Rieger decision. In State v. Rieger, 270
Neb. 904, 708 N.W.2d 630 (2006), the Supreme Court reversed
our decision on the basis that our use of the 6 months provided
in Nebraska’s speedy trial act was incorrect when the interstate
Agreement on Detainers provided that the defendant shall be
brought to trial within 180 days after the prosecutor and court
with jurisdiction receive the defendant’s proper request for
disposition of untried charges. However, because the 5 days we
had excluded from the running of the time in which to bring
the defendant to trial because of his attorney’s motion to with-
draw did not impact the result, the Supreme Court declined to
address the defendant’s claim that we had erroneously excluded
time attributable to his counsel’s motion to withdraw. Thus, at
this juncture, the only published Nebraska appellate court deci-
sion on whether time attributable to defense counsel’s motion
to withdraw is still our holding in State v. Rieger, 13 Neb. App.
444, 695 N.W.2d 678 (2005). We believe that our rationale
from our Rieger decision for excluding the time for the reso-
lution of defense counsel’s motion to withdraw is still sound.
Plus, we note additional authority from other jurisdictions, not
cited in our Rieger opinion, that holds that the speedy trial
clock is tolled from when a motion to withdraw is made until
new counsel is appointed. See, U.S. v. Oberoi, 295 F. Supp. 2d
286 (W.D.N.y. 2003); Linden v. State, 598 P.2d 960 (Alaska
1979); State v. Brown, 157 N.H. 555, 953 A.2d 1174 (2008);
State v. Younker, No. 07CA18, 2008 Ohio App. leXIS 5736
(Ohio App. Dec. 16, 2008).
Accordingly, we hold that the speedy trial clock is stopped
on the day following the filing of counsel’s motion to with-
draw—in this case, April 27, 2007. While the general rule is
that the excluded time period for a defendant’s motion ends on
the day the motion is granted or denied, see State v. Williams,
277 Neb. 133, 761 N.W.2d 514 (2009), we find that in the
case of a motion of counsel to withdraw, the clock does not
start again until new counsel has been appointed. See, Oberoi,
STATe v. CuRRy 	293
Cite as 18 Neb. App. 284

supra; Brown, supra; Younker, supra. This exception to the
general rule from Williams, supra, that the excluded time for
defendants’ motions ends when such are granted or denied is
consistent with our rationale in Rieger that the prosecution is
essentially halted by the motion to withdraw and cannot effec-
tively resume until new counsel is in place.
In this case, the trial court granted the motion to withdraw
on May 7, 2007, but the court did not appoint new counsel
until its order of May 10 that recites: “On the basis of the
financial affidavit presented to the Court the application for
court appointed counsel is approved.” Although our record
does not contain such application from Curry, it is a fair infer-
ence that it was filed at or about the time of the court’s order of
May 7 allowing the withdrawal of Curry’s first attorney. Thus,
the motion to withdraw was not completely resolved until the
trial court’s order appointing substitute counsel on May 10.
Therefore, we find, as a matter of law, that the timeframe that
is excluded from the speedy trial clock with regard to the first
information for the motion of Curry’s first counsel to withdraw
began April 27 and ended May 10—a total of 14 days, not 8
days as found by the trial court.
(b) Additional excludable Days
Regarding First Information
With reference to the first information, the trial court found
that there were, in addition to the 8 days it excluded for the
motion of counsel to withdraw, “[t]welve (12) days for 2nd
Motion to take Depositions” and “[t]wo (2) days for Motion in
limine and other pre-trial motions” excluded from the running
of the speedy trial clock. Curry makes no complaint of such
exclusions, and we find that such were properly excluded.
Next, Curry asserts that the trial court did not properly deal
with the State’s motion to continue in its speedy trial calcula-
tion, because the trial court made “no finding that the contin-
uance was granted upon good cause shown.” brief for appellant
at 7. While we ultimately conclude that the treatment of the
continuance does not involve whether there was good cause for
such, the fact is that the trial court did not address this motion
for continuance in its order. The record shows that on June 20,
294 	18 NebRASkA APPellATe RePORTS

2007, the State moved “to continue the Jury Trial . . . for the
reason that court reporters [were] unavailable for depositions
at [that] time” and “[a]dditional time [was] needed to obtain
depositions prior to trial.” In a journal entry file stamped
June 28, the court recited that a hearing with all counsel had
occurred on June 26; the journal entry stated, “The Court,
being duly advised, finds that the motion is granted and that
the Jury Trial is continued to [the] 8th day of August 2007 . . . .”
In the trial court’s rather detailed order overruling the motion
to discharge, there is no mention whatsoever of this motion to
continue; thus, in the trial court’s order, the speedy trial clock
was not tolled for the State’s motion to continue. Defense
counsel asserted at oral argument that there was no showing of
“good cause” and that as a result, no time could be excluded
for the State’s motion for continuance.
[16] The “catchall” provision of § 29-1207(4)(f) provides
for excludable time for “[o]ther periods of delay not specifi-
cally enumerated [in § 29-1207(4)], but only if the court finds
that they are for good cause.” It is clear that trial courts are to
make specific findings in order to facilitate appellate review of
all determinations of excludable periods under § 29-1207(4).
See State v. Williams, 277 Neb. 133, 761 N.W.2d 514 (2009).
Therefore, the trial court’s order is deficient in its failure to
make findings regarding this motion—but the record shows
that the motion for continuance is not properly resolved under
the “catchall” provision quoted above.
The record before us includes the hearing on the State’s
motion that occurred on June 26, 2007, with both counsel
as well as Curry present. The record of this proceeding cov-
ers seven pages; thus, we summarize what occurred. both
counsel were in agreement on the need to take depositions of
the alleged victim and another witness and that the earliest a
court reporter was available was July 11—the then-set trial
date being July 18. both counsel were of the view that such
trial date was too close to the July 11 depositions, such that
additional time would be needed to study the results of the
depositions, plus of the view that it was possible that other
issues would be generated by the depositions that could not
be taken until July 11. After these statements by counsel, an
STATe v. CuRRy 	295
Cite as 18 Neb. App. 284

extensive discussion followed about finding a new trial date in
early August. It is clear from his responses when questioned
by the trial court that Curry understood the need for the con-
tinuance. Moreover, a fact finder could easily conclude from
the record of this hearing that Curry was knowingly agreeable
to the proposed continuance. The matter was left, at the con-
clusion of the hearing on June 26, that counsel would jointly
discuss the status of other pending cases on the docket and that
they would meet the next day informally with the trial judge
about what they had concluded regarding a trial date. There is
no record of that informal meeting, but on June 28, the court
filed a journal entry granting the continuance and setting the
matter for trial on August 8. We find that it is beyond dispute
that Curry’s counsel, if not Curry personally, consented to the
granting of the State’s motion for continuance. However, on
July 25, the State filed a motion to dismiss “due to witness
unavailability” which was granted “without prejudice” on that
same date.
As we have outlined above, such dismissal tolled the
speedy trial clock on July 25, 2007. However, Curry argues
that trial was set for July 5 and that “any period of delay after
July 5 . . . was attributable to the State’s motion to continue.”
brief for appellant at 8. Curry’s argument that such time is
chargeable to the State is based on a lack of a finding of good
cause for the continuance under § 29-1207(4), but it ignores
the transcript of the hearing at which the defense consented
to the continuance. Initially, we note that in an order of
March 6, the court had set July 5 as the last day to tender
“any negotiated plea” and decreed that “a Jury Trial [was
thereby] set for the 18th day of July.” In the final analysis,
Curry’s argument ignores § 29-1207(4)(b), which provides
for the exclusion of “[t]he period of delay resulting from a
continuance granted at the request or with the consent of the
defendant or his counsel.” After examination of the proceed-
ings of June 26, it is clear that the State’s motion for contin-
uance was granted with the consent of Curry’s counsel, if not
also by Curry himself. Thus, we turn to how much time is
excluded from the speedy trial clock because of the mutually
agreed-upon continuance.
296 	18 NebRASkA APPellATe RePORTS

The State’s motion for continuance was filed June 20, 2007,
and while such was ultimately granted and the trial was reset
for August 8, the first information under which the case was
proceeding was dismissed on July 25. State v. Turner, 252 Neb.
620, 564 N.W.2d 231 (1997), teaches that ordinarily, the period
of time from the filing of a motion to continue until the new
trial date would be excluded under either § 29-1207(4)(c)(i)
or § 29-1207(4)(b). In Turner, supra, the court dealt first with
the State’s motion for a continuance because results from the
testing of sperm samples for DNA were not yet available.
Section 29-1207(4)(c)(i), providing for tolling of the speedy
trial clock when necessary evidence is unavailable despite the
State’s due diligence, was used in Turner, supra, to exclude
the 74 days from the day after the filing of the motion until
the new trial date—January 5 to March 20, 1995. Helpfully,
Turner, supra, also dealt with the defendant’s motion to con-
tinue filed May 11 to secure an independent DNA analysis and
a second such motion from the defendant filed July 11, which
resulted in a trial date of November 13, when the trial actually
began. The Turner court relied on § 29-1207(4)(b), noting that
a period of delay resulting from a continuance granted at the
request or with the consent of the defendant or his counsel
is excluded from the speedy trial calculation. Thus, the court
found, “[T]he entire period from the date of the first motion
for continuance (May 11) until the time of trial (November 13)
is properly excluded. This totals 186 days.” Turner, 252 Neb.
at 632, 564 N.W.2d at 239. (Since the Turner decision, there
has been a change in that the count for excluded days now is
to begin with the day following the filing of the motion, rather
than with the date the motion was filed as was done in Turner.
See State v. Baker, 264 Neb. 867, 652 N.W.2d 612 (2002).
See, also, State v. Feldhacker, 11 Neb. App. 608, 657 N.W.2d
655 (2003), affirmed as modified 267 Neb. 145, 672 N.W.2d
627 (2004).)
[17] Accordingly, applying Turner, supra, we would begin
the count of excluded days for the mutually agreed-upon con-
tinuance under § 29-1207(4)(b) from the day after the State’s
motion to continue was filed, June 21, 2007, and continue to
exclude days until the new trial date, August 8—except for the
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fact that the information was dismissed on July 25. Clearly, the
speedy trial clock cannot run past the date that the informa-
tion was dismissed, as there was then no prosecution pending.
See State v. French, 262 Neb. 664, 633 N.W.2d 908 (2001).
As a result, there were 35 days attributable to the motion for
continuance during which the speedy trial clock was tolled,
from June 21 to July 25, and we include those days in our final
calculation, remembering that a correct result (overruling the
motion to discharge) will not be reversed when the trial court’s
reasoning is incorrect (trial court’s speedy trial count was
incorrect). See State v. Tlamka, 244 Neb. 670, 508 N.W.2d 846
(1993), abrogated on other grounds, State v. Morris, 251 Neb.
23, 554 N.W.2d 627 (1996).
4. second infoRmation and speedy tRial clock
As previously outlined, the law is that when a second infor-
mation is filed charging the defendant with the same crime as
was charged in the first information, the speedy trial clock is
tolled between the dismissal of the first information and the
filing of the second information. Nonetheless, there is only
one 6-month period of time in which the State must bring the
defendant to trial under the speedy trial act. Thus, the excluded
timeframes during the pendency of both informations are added
together to determine whether the speedy trial clock has run on
the second information. We now turn to the procedure and facts
surrounding the second information.
Curry asserts that when there is a complaint in county court
followed by a bindover to district court, “foregoing [sic] a
direct filing [in district court] would be a delay attributable
to the State.” brief for appellant at 8. Curry cites us to State
v. Gingrich, 211 Neb. 786, 320 N.W.2d 445 (1982), for his
proposition that “unreasonable delay occurring prior to the
filing of an information will be considered in determining
whether [a] defendant has been denied speedy trial.” brief for
appellant at 9. Admittedly, a portion of the quoted proposition
is found in Gingrich, supra. but, it is set forth only for the
purpose of determining whether there had been a denial of the
constitutional right to a speedy trial, not with respect to the
statutory right. In this case, Curry asserts only his statutory
298 	18 NebRASkA APPellATe RePORTS

rights under Nebraska’s speedy trial act. Thus, Gingrich,
supra, and similar cases are not on point. Our analysis is
undertaken only with respect to excludable timeframes under
§ 29-1207, as it was with respect to the first information, as
no constitutional speedy trial issue has been raised in the court
below or on appeal. As said earlier, we hold that the speedy
trial clock is tolled for the timeframe between the dismissal of
the first information and the filing of the second information.
Curry concludes his brief with the statement that “[p]eriods of
delay attributable to [Curry] total only thirty-four (34) days”
and the assertion that as a result, the speedy trial clock had
run when he filed his motion to discharge on March 6, 2009;
we assume Curry’s 34 days encompass both informations.
We have already dealt with excludable time periods for the
first information.
With regard to the second information, the trial court found
only 4 days excludable due to Curry’s motion to review bond
filed January 26, 2009, that was noticed for hearing on
January 30. The trial court said that no order could be found
on such motion showing that Curry was heard on the motion.
The trial court “[found] it improper to impute any further
time to [Curry] for purposes of calculation of speedy trial
time than that time that would otherwise have been properly
imputed to him assuming that he had been heard on January
30.” Thus, the court limited the excludable time to the 4 days
beginning on January 27 and ending on January 30. While
it is correct that there is no order in our record evidencing
a ruling on such motion, the court’s rationale for limiting
the excludable time to 4 days is incorrect. The final disposi-
tion under § 29-1207(4)(a) of a defendant’s motion occurs
on the date the motion is “‘“‘granted or denied,’”’” see
State v. Williams, 277 Neb. 133, 141, 761 N.W.2d 514, 522
(2009), not when the motion is heard. Thus, the trial court
was clearly wrong as a matter of law in using the date that
the motion to review bond was to be heard as the end of the
excludable time.
[18] In the end, the record before the district court, as well
as before us, fails to show that the motion was granted or
denied. This means that on the record produced by the parties,
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the motion to review bond had not been finally determined
when Curry filed his motion to discharge on March 6, 2009.
Consequently, the speedy trial clock was tolled from January
27 through March 6, when the motion to discharge was filed, a
total of 39 days. And the speedy trial clock remains tolled until
the motion to discharge is finally resolved, including during the
appeal until action is taken on our mandate, see State v. Miller,
9 Neb. App. 617, 616 N.W.2d 75 (2000).
5. final speedy tRial clock calculation
We have proceeded to this point by narrative, and from such
we have constructed the following timeline:
First Information
February 27, 2007 	First information filed
August 27, 2007 	last day, without excludable days
March 6, 2007 	Curry’s motion for disclosure filed
March 8, 2007 	Motion ruled on: 1 day excluded
April 26, 2007 	First lawyer moves to withdraw
May 7, 2007 	Motion to withdraw granted
May 10, 2007 	Second lawyer appointed:
14 days excluded
June 20, 2007 	State files motion to continue
June 28, 2007 	Continuance granted, by agreement;
new trial date set for August 8
July 25, 2007 	State moves to dismiss; granted same
day; 35 days excluded for continuance
(June 21 to July 25), plus 33 days left
on speedy trial clock when information
dismissed (July 26 to August 27)
Days left at dismissal:
1 + 14 + 35 + 33 = 83 days excluded
July 25, 2007 	Speedy trial clock tolled
Second Information
January 20, 2009 	Second information filed; speedy trial
clock begins again; add 83 days to
January 20—last day to begin trial
is April 12, 2009
300 	18 NebRASkA APPellATe RePORTS

January 26, 2009 	Curry files motion to review bond;
not granted or denied
January 27, 2009 	excluded days begin for motion to
review bond
March 6, 2009 	Motion to discharge filed; 39 days
excluded due to motion to review bond
(January 27 to March 6)
As of March 6, 2009 	last day to begin trial is April 12,
2009, plus 39 days for motion to review
bond; last day to begin trial is May 21
VI. CONCluSION
The trial court found that as of the filing of the motion to
discharge on March 9, 2009, the State had 11 days, or until
March 20, in which to bring Curry to trial. Initially, we note
the court’s error in stating that March 9 was the date of the
motion to discharge when it was actually March 6. Regardless,
we find that such calculation was in error in that the State had
until April 12, plus 39 excluded days for the motion to review
bond, or until May 21, in which to bring Curry to trial, given
that his motion to discharge was filed on March 6. Thus, there
are 76 days remaining on the speedy trial clock when the dis-
trict court takes action on our mandate. Accordingly, the trial
court did not err in overruling the motion for discharge, but we
modify its decision to add additional days to the speedy trial
clock as outlined herein. The time during which a defendant’s
motion is on appeal to an appellate court is excludable time for
speedy trial purposes. State v. Hayes, 10 Neb. App. 833, 639
N.W.2d 418 (2002).
affiRmed as modified.
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