State v. Williams

state v. williams 	133
Cite as 277 Neb. 133
State of NebraSka , appellee , v.
WeSley l. WilliamS, appellaNt.
761 N.w.2d 514
Filed February 6, 2009. 	No. s-07-1048.
1. Jurisdiction: Appeal and Error. a jurisdictional question which does not
involve a factual dispute is determined by an appellate court as a matter of law.
2. 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.
3. 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.
4. Speedy Trial. 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
2008) to determine the last day the defendant can be tried.
5. Speedy Trial: Pretrial Procedure. the plain terms of Neb. Rev. stat.
§ 29-1207(4)(a) (Reissue 2008) 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. the excludable 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.
6. Speedy Trial: Pretrial Procedure: Presumptions. Pursuant to Neb. Rev. stat.
§ 29-1207(4)(a) (Reissue 2008), it is presumed that a delay in hearing defense
pretrial motions is attributable to the defendant unless the record affirmatively
indicates otherwise.
7. Speedy Trial: Appeal and Error. an interlocutory appeal taken by the defendant
is a period of delay resulting from other proceedings concerning the defendant
within the meaning of Neb. Rev. stat. § 29-1207(4)(a) (Reissue 2008).
8. Speedy Trial: Jurisdiction: Appeal and Error. 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 proceed-
ings 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.
9. Speedy Trial. For speedy trial purposes, the calculation for a continuance begins
the day after the continuance is granted and includes the day on which the con-
tinuance 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
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:51 AM CST

his or her desire for the indefinite continuance to end or, absent such a showing,
on the rescheduled trial date.
10. ____. Under Neb. Rev. stat. § 29-1208 (Reissue 2008), if a defendant is not
brought to trial before the running of the time for trial, as extended by excludable
periods, he or she shall be entitled to his or her absolute discharge.
11. Speedy Trial: Proof. the burden of proof is upon the state to show that one or
more of the excluded time periods under Neb. Rev. stat. § 29-1207(4) (Reissue
2008) are applicable when the defendant is not tried within 6 months.
12. ____: ____. 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.
13. Courts: Speedy Trial. effective march 9, 2009, when ruling on a motion for
absolute discharge pursuant to Neb. Rev. stat. § 29-1208 (Reissue 2008), the trial
court shall make specific findings of each period of delay excludable under Neb.
Rev. stat. § 29-1207(4)(a) to (e) (Reissue 2008), in addition to the findings under
§ 29-1207(f). 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 con-
sideration all excludable periods.
appeal from the District Court for Douglas County: peter
C. batailloN, Judge. affirmed.
thomas C. Riley, Douglas County Public Defender, for
appellant.
Jon Bruning, attorney General, and James D. smith for
appellee.
H eaviCaN, 	C.J., 	WrigHt, 	C oNNolly, 	gerrard, 	StepHaN,
mCC ormaCk , and miller-lermaN, JJ.
StepHaN, J.
this is an appeal from an order of the district court for
Douglas County overruling wesley l. williams’ motion for
absolute discharge on statutory speedy trial grounds. we affirm
the judgment of the district court.
i. BaCKGROUND
On December 8, 2003, williams was charged by informa-
tion with first degree murder and use of a deadly weapon to
commit a felony. thereafter, he filed numerous motions and
obtained several continuances. trial was eventually scheduled
134 	277 NeBRasKa RePORts

for september 5, 2006. On august 14, williams filed a pro
se motion to dismiss, which was treated as a motion for dis-
charge on statutory speedy trial grounds and was overruled on
august 23.
in case No. a-06-942, williams appealed the denial of his
motion for discharge. the Nebraska Court of appeals sum-
marily affirmed. Because of the summary disposition, neither
the parties nor the district court was apprised of the Court of
appeals’ specific reasons for concluding that the speedy trial
clock had not run. the mandate was spread on the record of the
district court on may 16, 2007.
after 	additional 	pretrial 	proceedings 	following 	remand,
including continuances granted at williams’ request or with
his consent, trial was scheduled for October 1, 2007. On
september 28, williams filed a second motion for discharge.
at a hearing held on that date, the state argued that the motion
was frivolous, but the district court made a finding that it was
not. the court received evidence offered by williams, includ-
ing the testimony of the court’s former bailiff and the affidavit
of williams’ counsel regarding certain docket entries pertinent
to the speedy trial calculation. the district court overruled the
motion for discharge, and williams then perfected this appeal,
which we moved to our docket on our own motion.
ii. assiGNmeNt OF eRROR
williams assigns that the district court erred in overruling
his motion for discharge, because the state failed to bring his
case to trial within the statutory 6-month period required by
Neb. Rev. stat. § 29-1207 (Reissue 2008).
iii. staNDaRD OF ReView
[1] a jurisdictional question which does not involve a fac-
tual dispute is determined by an appellate court as a matter
of law.1
[2] as a general rule, a trial court’s determination as to
whether charges should be dismissed on speedy trial grounds
1 State v. Rodriguez-Torres, 275 Neb. 363, 746 N.w.2d 686 (2008); State v.
Nelson, 274 Neb. 304, 739 N.w.2d 199 (2007).
state v. williams 	135
Cite as 277 Neb. 133

is a factual question which will be affirmed on appeal unless
clearly erroneous.2
iV. aNalYsis
1. SubJeCt matter JuriSdiCtioN
in State v. Gibbs,3 this court held that to the extent Nebraska’s
speedy trial statutes4 conferred a right to a speedy trial and
authorized a special application to obtain judicial enforcement
of that right, “a ruling on a motion for absolute discharge
based upon an accused criminal’s nonfrivolous claim that his
or her speedy trial rights were violated is a ruling affecting a
substantial right made during a special proceeding and is there-
fore final and appealable.”5 we reasoned that the ruling on a
motion to discharge affected a substantial right, because “the
rights conferred on an accused criminal by §§ 29-1207 and
29-1208 would be significantly undermined if appellate review
of nonfrivolous speedy trial claims were postponed until after
conviction and sentence.”6 in State v. Jacques,7 decided 1 week
after Gibbs, we reiterated these principles in concluding that
an appellate court lacked jurisdiction to adjudicate a statutory
speedy trial issue in a direct appeal, because the defendant had
not appealed within 30 days of the pretrial ruling denying his
motion for discharge.
in this case, the state urges that we overrule Gibbs and
Jacques, and hold that the order overruling williams’ motion
for discharge on statutory speedy trial grounds was a non-
final order for which there is no appellate jurisdiction.8 the
2 State v. Sommer, 273 Neb. 587, 731 N.w.2d 566 (2007); State v. Vasquez,
16 Neb. app. 406, 744 N.w.2d 500 (2008).
3 State v. Gibbs, 253 Neb. 241, 570 N.w.2d 326 (1997).
4 see Neb. Rev. stat. §§ 29-1201 to 29-1209 (Reissue 2008).
5 State v. Gibbs, supra note 3, 253 Neb. at 245, 570 N.w.2d at 330.
6 Id.
7 State v. Jacques, 253 Neb. 247, 570 N.w.2d 331 (1997).
8 see State v. Vela, 272 Neb. 287, 721 N.w.2d 631 (2006) (holding appellate
court has duty to determine its jurisdiction).
136 	277 NeBRasKa RePORts

state directs our attention to State v. Wilson,9 decided by the
Nebraska Court of appeals in 2006. in that case, the defendant
filed a pretrial motion for discharge, alleging that both his statu-
tory and constitutional speedy trial rights had been violated.
after conviction by a jury, but before sentencing, he filed an
appeal alleging only that he was denied his constitutional rights
to a speedy trial. the Court of appeals dismissed the appeal
after concluding that there was no final, appealable order. the
court relied in part upon United States v. MacDonald,10 which
held that a criminal defendant may not, before trial, appeal an
order denying his motion to dismiss on constitutional speedy
trial grounds. the MacDonald Court reasoned that resolution
of a constitutional speedy trial claim “necessitates a careful
assessment of the particular facts of the case”11 by applica-
tion of the four-part balancing test established by the Court in
Barker v. Wingo,12 which includes a determination of whether
delay was prejudicial to the defendant. the Court noted that
prior to trial, “an estimate of the degree to which delay has
impaired an adequate defense tends to be speculative”13 and
concluded that in most circumstances, the question of whether
delay is prejudicial to the defense can only be fairly assessed
after trial. in applying the reasoning of MacDonald and dis-
tinguishing our holdings in Gibbs and Jacques, the Court of
appeals has correctly noted that “speedy trial claims based
on statutory grounds are more amenable to resolution prior to
trial than are those claims based on constitutional grounds.”14
another distinction, as noted in Wilson, is that there is no statu-
tory remedy to enforce a claimed denial of the constitutional
right to a speedy trial.
9 State v. Wilson, 15 Neb. app. 212, 724 N.w.2d 99 (2006).
10 United States v. MacDonald, 435 U.s. 850, 98 s. Ct. 1547, 56 l. ed. 2d
18 (1978).
11 Id., 435 U.s. at 858.
12 Barker v. Wingo, 407 U.s. 514, 92 s. Ct. 2182, 33 l. ed. 2d 101 (1972).
13 United States v. MacDonald, supra note 10, 435 U.s. at 858.
14 State v. Wilson, supra note 9, 15 Neb. app. at 220, 724 N.w.2d at 107.
state v. williams 	137
Cite as 277 Neb. 133

thus, we are not persuaded by the state’s argument that
MacDonald and Wilson undermine our reasoning in Gibbs and
Jacques. a claimed denial of statutory speedy trial rights does
not require any showing of prejudice; on a proper record, it
is a relatively simple mathematical computation of whether
the 6-month speedy trial clock, as extended by statutorily
excludable periods, has expired prior to the commencement
of trial. if it has, subjecting a defendant to trial would impair
a substantial right in the same manner that rights of an
accused criminal would be undermined if appellate review of
double jeopardy claims were postponed until after conviction
and sentence.15
the state argues that we should follow the reasoning of
federal courts which have held that because the federal speedy
trial act of 197416 does not confer a “‘right not to be tried’”
equivalent to that of the Double Jeopardy Clause, there is no
right of interlocutory appeal from an order denying a motion
to dismiss on statutory speedy trial grounds.17 Our speedy trial
statute precludes adoption of this reasoning, because the sanc-
tion for violation of Nebraska’s speedy trial act differs signifi-
cantly from that of the federal speedy trial act of 1974. if a
federal criminal defendant is not brought to trial within the
time limit specified in the federal act, the court may dismiss
with or without prejudice.18 in making this determination, a
federal court may consider various factors, including “the seri-
ousness of the offense; the facts and circumstances of the case
which led to the dismissal; and the impact of a reprosecution
on the administration of [the act] and on the administration
of justice.”19
15 see, Abney v. United States, 431 U.s. 651, 97 s. Ct. 2034, 52 l. ed. 2d
651 (1977); State v. Milenkovich, 236 Neb. 42, 458 N.w.2d 747 (1990).
16 18 U.s.C. §§ 3161 to 3174 (2006).
17 see, e.g., United States v. Mehrmanesh, 652 F.2d 766, 769 (9th Cir.
1981).
18 18 U.s.C. § 3162(a)(2).
19 Id.
138 	277 NeBRasKa RePORts

Under Nebraska law, however, a judge has no such discre-
tion. if a defendant is not brought to trial within the time
period specified in the speedy trial act, the statute provides that
“he shall be entitled to his absolute discharge from the offense
charged and for any other offense required by law to be joined
with that offense.”20
By 	using 	this 	language, 	the 	Nebraska 	legislature 	has
bestowed a “right not to be tried” upon a defendant who is not
brought to trial within the statutory time period, as extended
by excludable periods. Gibbs likened this right to the rights
granted by the Double Jeopardy Clause and determined that
the rights conferred on a criminal defendant by §§ 29-1207 and
29-1208 would be significantly undermined if appellate review
of nonfrivolous speedy trial claims were postponed until after
conviction and sentence. Because the sanction for violation of
the federal act differs significantly from that in the Nebraska
statute, this argument does not persuade us that Gibbs and
Jacques were wrongly decided.
the state also argues that a right of interlocutory appeal
from an order denying absolute discharge delays criminal
trials. while this is true to some degree, Nebraska’s speedy
trial statute contemplates and indeed permits delay instigated
by a defendant, in that it excludes from the speedy trial
computation any periods of delay resulting from “pretrial
motions of the defendant” and “a continuance granted at the
request or with the consent of the defendant or his counsel.”21
as discussed below, most of the delay in this case resulted
from such motions filed by williams in the district court.
the fact that some additional delay results from an interlocu-
tory appeal initiated by a criminal defendant from the denial
of a motion for discharge does not justify overruling Gibbs
and Jacques.
Finally, we are not persuaded by the argument that we
should change the law because of what the state perceives as
abuse by criminal defendants of the right to take an immediate
20 § 29-1208.
21 § 29-1207(4)(a) and (b).
state v. williams 	139
Cite as 277 Neb. 133

appeal from an order denying a motion for discharge on statu-
tory speedy trial grounds. as specifically stated in Gibbs, the
right to appeal is triggered by denial of a “nonfrivolous claim”
of violation of the statutory right to a speedy trial.22 we note
that the district court made a specific finding that williams’
statutory speedy trial claim presented in this appeal was not
frivolous. For these reasons, we decline the state’s invitation to
overrule Gibbs and Jacques, and we conclude on the basis of
those precedents that we have jurisdiction to reach and resolve
the merits of this appeal.
2. CalCulatioN of Speedy trial time
[3,4] 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.”23 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.24 Certain periods of delay are excluded from the speedy
trial computation, including:
(a) the period of delay resulting from other proceed-
ings 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.25
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
22 State v. Gibbs, supra note 3, 253 Neb. at 245, 570 N.w.2d at 330.
23 § 29-1207(1).
24 State v. Karch, 263 Neb. 230, 639 N.w.2d 118 (2002).
25 § 29-1207(4).
140 	277 NeBRasKa RePORts

§ 29-1207(4) to determine the last day the defendant can
be tried.26
[5,6] 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.27 such motions include a defend-
ant’s motion to suppress evidence and a motion for discovery
filed by the defendant.28 the excludable period commences on
the day immediately after the filing of a defendant’s pretrial
motion.29 Final disposition under § 29-1207(4)(a) occurs on
the date the motion is “‘“granted or denied.”’”30 Pursuant to
§ 29-1207(4)(a), it is presumed that a delay in hearing defense
pretrial motions is attributable to the defendant unless the
record affirmatively indicates otherwise.31
[7,8] an interlocutory appeal taken by the defendant is a
period of delay resulting from other proceedings concerning
the defendant within the meaning of § 29-1207(4)(a).32 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.33
where further proceedings are to be had following an inter-
locutory appeal, for speedy trial purposes, the period of time
excludable due to the appeal concludes when the district court
26 State v. Sommer, supra note 2; 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).
27 see, State v. Covey, 267 Neb. 210, 673 N.w.2d 208 (2004); State v. Turner,
252 Neb. 620, 564 N.w.2d 231 (1997).
28 State v. Dockery, 273 Neb. 330, 729 N.w.2d 320 (2007); State v.
Washington, 269 Neb. 728, 695 N.w.2d 438 (2005).
29 State v.Baker, supra note 26; State v. Feldhacker, supra note 26.
30 State v. Washington, supra note 28, 269 Neb. at 731, 695 N.w.2d at 440.
31 State v. Turner, supra note 27.
32 see State v. Ward, 257 Neb. 377, 597 N.w.2d 614 (1999), disapproved on
other grounds, State v. Feldhacker, supra note 26.
33 State v. Baker, supra note 26; State v. Ward, supra note 32.
state v. williams 	141
Cite as 277 Neb. 133

first reacquires jurisdiction over the case by taking action on
the mandate of the appellate court.34
[9] as noted, § 29-1207(4)(b) excludes delays resulting
from a continuance granted at the request or with the consent
of the defendant or his or her counsel.35 the calculation for a
continuance begins the day after the continuance is granted
and includes the day on which the continuance ends.36 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.37
[10-12] Under § 29-1208, if a defendant is not brought
to trial before the running of the time for trial, as extended
by excludable periods, he or she shall be entitled to his or
her absolute discharge.38 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.39 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.40
3. C ourt reCord
two dates pertinent to our analysis are certain: December
8, 2003, the date on which the information was filed, and
september 28, 2007, the date on which williams filed the
motion for discharge which is the subject of this appeal.
Obviously, unless significant portions of the nearly 4-year
34 Id.
35 State v. McHenry, 268 Neb. 219, 682 N.w.2d 212 (2004).
36 see State v. Blakeman, 16 Neb. app. 362, 744 N.w.2d 717 (2008).
37 see, State v. Schmader, 13 Neb. app. 321, 691 N.w.2d 559 (2005); State
v. Dailey, 10 Neb. app. 793, 639 N.w.2d 141 (2002).
38 see, State v. Sommer, supra note 2; State v. Baker, supra note 26.
39 State v. Sommer, supra note 2.
40 Id.
142 	277 NeBRasKa RePORts

span between those dates constitute excludable periods under
§ 29-1207, the state’s time in which to bring williams to trial
has expired. Our task in this appeal is to determine whether
the district court erred in concluding that it had not. this task
is made more difficult by the fact that the district court made
only general findings. in its ruling on the initial motion for
discharge, the court found that all prior trial dates “have all
been continued at the request of the defendant for a variety
of reasons” and that according to its unspecified calcula-
tions, “the six months speedy trial has not run.” in ruling on
the second motion, the motion at issue in this appeal, the
court concluded that it was “well within the parameters” of
the speedy trial statute. at the time of these rulings, neither
the speedy trial statute nor our prior case law required more
specific findings of excludable periods under § 29-1207(4)(a)
and (b).
[13] we have required specific findings with respect to
the excludable period under another provision of the speedy
trial statutes. section 29-1207(4)(f) provides that other peri-
ods of delay not specifically enumerated in the statute may
be excluded in the speedy trial computation, “but only if the
court finds that they are for good cause.” in State v. Alvarez,41
we held prospectively that in order to facilitate appellate
review, trial courts must make specific findings with respect to
§ 29-1207(4)(f) “as to the cause or causes of such extensions
and the period of extension attributable to such causes.” we
now conclude that similar findings are necessary in order to
facilitate appellate review of all determinations of excludable
periods under § 29-1207(4). effective march 9, 2009, when rul-
ing on a motion for absolute discharge pursuant to § 29-1208,
the trial court shall make specific findings of each period of
delay excludable under § 29-1207(4)(a) to (e), in addition
to the findings under § 29-1207(4)(f) currently required by
Alvarez. such findings shall include the date and nature of the
proceedings, circumstances, or rulings which initiated and con-
cluded each excludable period; the number of days composing
each excludable period; and the number of days remaining in
41 State v. Alvarez, 189 Neb. 281, 292, 202 N.w.2d 604, 611 (1972).
state v. williams 	143
Cite as 277 Neb. 133

which the defendant may be brought to trial after taking into
consideration all excludable periods.
4. reSolutioN of WilliamS’ C laim
in the absence of any excludable period, the 6-month period
in which the state was required to bring williams to trial
would have begun on December 9, 2003, and ended on June
8, 2004.
(a) First excludable Period: January 17 to
July 8, 2004 (174 Days)
the 	parties 	agree 	that 	an 	excludable 	period 	under
§ 29-1207(4)(a) began with williams’ plea in abatement and a
motion for discovery on January 16, 2004. they disagree as to
when this period ended. williams contends that it was on July
7, 2004, when the court overruled his plea in abatement. the
state argues that the excludable period continued until October
22, 2004, the date of a journal entry ordering “‘[m]utual and
reciprocal discovery . . . pursuant to statute.’”42 williams
argues that this entry was made long after the actual ruling
on his discovery motion and could not extend the excludable
period beyond July 7.
the record supports williams’ argument on this point. at a
hearing on williams’ motion for discharge, a former district
court bailiff testified that she made the October 22, 2004,
journal entry which refers to “reciprocal discovery” and that
it was made “for purposes of housekeeping” to reflect an
order which had occurred previously at the time of arraign-
ment. this testimony is consistent with the July 7 journal
entry in which the court overruled the plea in abatement and
further noted: “Nothing under advisement.” also, a motion
for continuance filed by williams on January 19, 2005, states
that discovery had been completed and that the state had
provided defense counsel with certain documents. the state
did not prove by a preponderance of the evidence that the
excludable period attributable to williams’ discovery motion
and plea in abatement extended beyond July 7, 2004. thus,
42 Brief for appellee at 14.
144 	277 NeBRasKa RePORts

the first excludable period commenced on January 17, 2004,
the day after the filing of the defense motions, and ended on
July 8, 2004, the date the order was file stamped, a total of
174 days.
(b) second excludable Period: October 6, 2004, to
august 14, 2006 (678 days)
On september 27, 2004, the district court entered an order
setting the case for trial commencing on November 8. On
October 5, williams filed a motion for continuance. williams
filed other motions as well, and the trial was originally resched-
uled to begin on February 7, 2005, “[b]y agreement of the
parties.” williams filed additional motions for continuance
and other motions in 2005 and 2006. He contends that these
motions resulted in an excludable period of 614 days, ending
on June 12, 2006, when a pretrial hearing was held and trial
was set to commence on september 5.
we disagree with williams’ reasoning regarding the end of
this excludable period. at a hearing on November 21, 2005,
williams’ counsel made an oral motion for a continuance due
to the continued unavailability of a key defense witness who
resided in another state. williams confirmed that he was ask-
ing for the continuance. Counsel could not provide a specific
date when the witness would be available, but agreed to give
the judge a “timeline” regarding the process of serving the
witness with a subpoena in another state. the court granted
the indefinite continuance. we agree with the reasoning of
the Court of appeals in State v. Dailey,43 which was derived
from our holding in State v. Andersen,44 that when a defendant
has sought and obtained an indefinite continuance, it is his or
her affirmative duty to end the continuance by giving notice
of request for trial. Otherwise, the court can end the contin-
uance by setting a trial date or specifically ordering that the
continuance has ended. when the court ends an indefinite con-
tinuance by setting a trial date, the excludable period resulting
43 State v. Dailey, supra note 37.
44 State v. Andersen, 232 Neb. 187, 440 N.w.2d 203 (1989).
state v. williams 	145
Cite as 277 Neb. 133

from the indefinite continuance ends on the date set for trial
and not the date on which the trial date is set.45
we find no indication in the record that williams took
affirmative action to end the indefinite continuance prior to
the court’s order of June 12, 2006. applying the forego-
ing reasoning, we conclude that the excludable period which
began on the day immediately following the filing of williams’
initial motion for continuance on October 5, 2004, did not
end on June 12, 2006, when the court set a trial date. Rather,
the excludable period was ongoing as of august 14, when
williams filed a motion to dismiss on speedy trial grounds,
thus commencing a third excludable period. we therefore con-
clude that the second excludable period began on October 6,
2004, and ended on august 14, 2006, a period of 678 days.
Because the second and third excludable periods overlap, we
include august 14, 2006, in our count of the number of days
in the second excludable period only.
(c) third excludable Period: august 15
to 23, 2006 (9 days)
the district court treated the motion to dismiss filed by
williams on august 14, 2006, as a motion for absolute dis-
charge on speedy trial grounds, and denied it on august 23,
2006. Counting august 15 as the first day of this period, it
included 9 days.
(d) Fourth excludable Period: august 25, 2006, to
may 16, 2007 (265 days)
williams filed his first notice of appeal on august 25,
2006. On may 10, 2007, the Court of appeals issued its
mandate affirming the denial of williams’ first motion for
discharge. the district court first took action on the mandate
on may 16 by scheduling a pretrial hearing for may 23,
thus ending the fourth excludable period which comprised
265 days.
45 State v. Dailey, supra note 37. see, also, State v. Schmader, supra note
37.
146 	277 NeBRasKa RePORts

(e) Fifth excludable Period: June 5 to
september 28, 2007 (116 days)
the record reflects that on may 23, 2007, the court contin-
ued the pretrial hearing to may 29, because both counsel were
appearing in the same criminal trial before another judge of the
same court. there is no indication that williams specifically
requested or consented to a continuance at this time. On may
29, williams’ counsel appeared at the rescheduled prehearing
conference, but the prosecutor did not because she was in trial.
the court continued the pretrial hearing to June 4. again, the
record does not indicate that williams requested or consented
to this continuance. None of this time is excludable.
Both counsel appeared on June 4, 2007, and the record indi-
cates that the matter was continued to June 11 “on the motion
of the Defense.” a June 11 docket entry states that both coun-
sel appeared and that the matter was continued “on the motion
of the Defense so counsel to [sic] speak to Defendant about
possible plea.” the next docket entry, dated June 15, 2007,
indicates that the pretrial hearing was continued to June 19 “on
the motion of the Defense from 06/11/2007.” a June 19 docket
entry indicates that a pretrial hearing was held and that the
matter was “continued for a jury trial commencing 10/01/2007”
with another pretrial hearing set for september 18, 2007. the
docket entry concludes: “Both continuances are on the motion
of the Defense.” williams filed his second motion for discharge
on september 28, 2007.
the record thus reflects that all continuances granted on and
after June 4, 2007, were at williams’ request or with his con-
sent. thus, the 116-day period from June 5 to september 28,
2007, was excludable under § 29-1207(4)(b).
5. Summary
Based on the foregoing, there were 1,242 days of exclud-
able time pursuant to § 29-1207(4)(a) and (b). thus, the period
in which the state could bring williams to trial was extended
from June 8, 2004, to November 2, 2007. Because there were
34 days remaining on the speedy trial clock when williams
filed his motion for discharge on september 28, 2007, the dis-
trict court did not err in overruling the motion.
state v. williams 	147
Cite as 277 Neb. 133

V. CONClUsiON
For the reasons discussed, we affirm our jurisdiction to
resolve nonfrivolous interlocutory appeals from the denial of a
motion for absolute discharge based on Nebraska’s speedy trial
statutes, and we affirm the judgment of the district court deny-
ing williams’ motion for discharge.
affirmed.
WrigHt, J., concurring.
in a criminal prosecution, the accused has the right to a
trial within 6 months of the indictment or the filing of the
information. see Neb. Rev. stat. § 29-1207 (Reissue 2008).
i have no problem with this requirement and would not over-
rule our prior decisions that permit an accused to assert this
right prior to trial. see, State v. Jacques, 253 Neb. 247, 570
N.w.2d 331 (1997); State v. Gibbs, 253 Neb. 241, 570 N.w.2d
326 (1997).
i write, however, to point out that the statutes relating to the
right to a speedy trial are flawed and are subject to abuse. the
present case illustrates this point.
Because of continuances granted at the accused’s request or
with his consent, trial has been postponed for years beyond the
6-month period. Following each continuance, the state must
set another trial date to comply with the 6-month requirement.
if the state does not try the accused within such period, the
accused is entitled to an absolute discharge. see Neb. Rev. stat.
§ 29-1208 (Reissue 2008). similar to the crocodile that fol-
lowed “Captain Hook,” time keeps following the state, and the
accused hopes the state will slip and fall victim to the 6-month
trial clock.
the solution is not in overruling Jacques and Gibbs, but in
amending the speedy trial statutes. if an accused extends the
trial date beyond the required 6 months, then the accused should
be deemed to have waived this 6-month trial requirement. the
accused is still protected by the constitutional right to a speedy
trial. the constitutional right and the statutory implementation
of that right under § 29-1207 exist independently of each other.
State v. Vrtiska, 225 Neb. 454, 406 N.w.2d 114 (1987).
in the case at bar, the accused has postponed his trial for
years and still asserts he was denied his statutory right to a
148 	277 NeBRasKa RePORts

speedy trial. the information was filed December 8, 2003, and
the accused has continued the trial from that date. One has only
to read the opinion of this court to observe the mental gymnas-
tics required to determine whether the state has slipped and
fallen victim to the law.
i concur in the result, but point out that the law is flawed.
H eaviCaN, C.J., and C oNNolly, J., join in this concurrence.
aNguS garey et al ., appelleeS aNd CroSS-appellaNtS, v.
NebraSka departmeNt of Natural reSourCeS et al .,
appellaNtS aNd CroSS-appelleeS.
759 N.w.2d 919
Filed February 6, 2009. 	No. s-08-581.
1. Constitutional Law: Statutes: Appeal and Error. whether a statute is constitu-
tional is a question of law; accordingly, the Nebraska supreme Court is obligated
to reach a conclusion independent of the decision reached by the trial court.
2. Constitutional Law: Taxation: Property. Neb. Const. art. Viii, § 1a, states that
the state shall be prohibited from levying a property tax for state purposes.
3. ____: ____: ____. Neb. Const. art. Viii, § 1a, contains two aspects: First, the
property tax at issue must be levied by the state, and second, the property tax at
issue must be levied for a state purpose.
4. Legislature: Political Subdivisions: Taxation: Property. where the legislature
has provided that a local political subdivision is authorized to levy property taxes
for state purposes, it should not conclusively be considered as a local property tax
levy merely because the levy is enforced by local authorities.
5. Constitutional Law: Taxation: Property. the state cannot circumvent the con-
stitutional mandate of Neb. Const. art. Viii, § 1a, by converting the traditional
state functions into local functions supported by property taxes.
6. Statutes: Intent. when state and local purposes are intermingled in a statute,
the crucial issue is whether the controlling and predominant purposes are state
purposes or local purposes.
7. States: Federal Acts. an interstate compact is agreed upon by the states, ratified
by the state legislatures, and then ratified by the U.s. Congress, at which time it
becomes the law of the United states.
8. Constitutional Law: Taxation: Property. a property tax in furtherance of com-
pliance with an interstate compact is, for purposes of analysis under Neb. Const.
art. Viii, § 1a, a property tax levied by the state for state purposes.
appeal from the District Court for lancaster County: paul
d. merritt, Jr ., Judge. affirmed.
GaReY v. NeBRasKa DePt. OF Nat. ResOURCes 	149
Cite as 277 Neb. 149