State v. Wells

CONCLUSION
Upon due consideration of the court file in this matter, the
court finds that respondent voluntarily has stated that he know-
ingly does not challenge or contest the truth of the allegations
in the application for temporary suspension, that he failed to
maintain his client’s funds, and that to the contrary, he used
the funds for his own purposes. The court accepts respondent’s
surrender of his license to practice law, finds that respondent
should be disbarred, and hereby orders him disbarred from
the practice of law in the State of Nebraska, effective immedi-
ately. With the exception of a sworn statement under oath that
respondent has complied with Neb. Ct. R. § 3-316(3), respon-
dent has complied with the terms of § 3-316. Accordingly,
respondent is directed to comply with all the terms of § 3-316
and to pay costs and expenses in accordance with Neb. Rev.
Stat. §§ 7-114 and 7-115 (Reissue 2007) and Neb. Ct. R.
§§ 3-310(P) and 3-323 within 60 days after an order imposing
costs and expenses, if any, is entered by the court.
Judgment of disbarment.
state of nebraska , appellee , v.
kenneth r. Wells , appellant.
763 N.W.2d 380
Filed April 3, 2009. 	No. S-07-1138.
1. Judgments: Speedy Trial. 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. Speedy Trial: Proof. 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.
Appeal from the District Court for Douglas County: J russell
derr, Judge. Affirmed.
Beau G. Finley, of Finley Law Offices, P.C., L.L.O., for
appellant.
Jon Bruning, Attorney General, and James D. Smith for
appellee.
476 	277 NeBRASkA RePORTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:51 AM CST

heavican, 	c.J., 	Wright, 	connolly, 	gerrard, 	stephan,
mccormack , and miller-lerman, JJ.
gerrard, J.
This is an appeal from the denial of a motion to discharge
based on the Nebraska speedy trial statutes.1 The issue pre-
sented in this case is whether the district court committed
clear error in concluding that the defendant, kenneth R. Wells,
agreed to a continuance at a pretrial conference. Finding no
clear error, we affirm the order of the district court.
BACkGROUND
Wells was charged by information on April 21, 2006, with
unlawful possession with intent to deliver a controlled sub-
stance. At a pretrial conference, Wells moved for a continu-
ance, and the motion was sustained. A series of hearings and
continuances followed; all of the continuances were requested
by Wells, and it is not disputed that those periods were exclud-
able time for speedy trial purposes.
The period of time disputed in this appeal began on January
19, 2007, at another pretrial conference. Trial was set for
January 31, but Wells’ counsel explained that he would be
unable to prepare for trial on that date because of another pend-
ing trial. Wells was given the choice of “joining” his counsel’s
motion for a continuance, proceeding to trial and represent-
ing himself, or having other counsel appointed. Wells replied,
“Yeah, I’d like to stick — no problem at all. If he would like
me to get a continuance, that’s what I’ll do. You think — if he
tells me that’s the best thing to do, I’m going to do it.” Wells
was given some time to think about it and confer with counsel,
and he reaffirmed that continuing the proceedings to the next
available trial date would “be fine.”
After a short recess, the court informed Wells that the next
available trial date was April 16, 2007. Wells affirmed that
he understood that the time between the hearing and April
16 would not count for speedy trial purposes. Another pre-
trial conference was scheduled for February 23, and Wells
1 See Neb. Rev. Stat. § 29-1201 et seq. (Reissue 2008).
STATe v. WeLLS 	477
Cite as 277 Neb. 476

expressed his understanding that the speedy trial “clock
would not run on that one” either. At the February 23 hear-
ing, speedy trial issues were discussed and the parties agreed
that because of the continuances requested by Wells, the
scheduled trial date was inside the remaining speedy trial
period. Wells indicated to the court that he understood what
had occurred.
A pretrial conference was held on the scheduled trial date—
April 16, 2007—at which time Wells expressly waived his
right to a speedy trial, in exchange for the State’s dismissal of
another charge. It appears from the record that the State wanted
Wells to testify in another, unrelated, proceeding and would be
willing to reach a plea agreement on the pending charge after
Wells testified. It was later discovered that Wells’ proposed tes-
timony was untruthful. On September 20, Wells filed a motion
to discharge on speedy trial grounds.
A hearing was held on the motion to discharge, at which
hearing Wells testified that he was “under the impression” that
the case had been set for trial on February 23, 2007. Wells
claimed he had never been told that the case was set for trial
on April 16.
The district court, after examining the bill of exceptions,
found that Wells had expressly consented to several continu-
ances, including the disputed January 19, 2007, continuance.
Therefore, the court found that the speedy trial period had not
elapsed before the April 16 hearing at which Wells waived his
speedy trial rights. The district court denied the motion to dis-
charge, and Wells appealed.
ASSIGNmeNT OF eRROR
Wells assigns that the district court erred by overruling his
motion to discharge. In his brief, Wells argues specifically that
the court erred in finding that he requested a continuance on
January 19, 2007.
In its brief, the State contends that we should overrule our
decisions in State v. Gibbs2 and State v. Jacques,3 and hold that
2 State v. Gibbs, 253 Neb. 241, 570 N.W.2d 326 (1997).
3 State v. Jacques, 253 Neb. 247, 570 N.W.2d 331 (1997).
478 	277 NeBRASkA RePORTS

an order overruling a motion to discharge based on speedy trial
grounds is not a final, appealable order.
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.4
ANALYSIS
Nebraska’s speedy trial statutes provide 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.”5 We note that § 29-1207 was recently
amended to change the date upon which the speedy trial period
commences to run for certain offenses,6 but that change is not
relevant here, and we cite to the current version of the statute
for the sake of simplicity and convenience.
[2] 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.7 One
such excludable period is “[t]he period of delay resulting from
a continuance granted at the request or with the consent of the
defendant or his or her counsel.”8 The delay caused by a con-
tinuance is not a complete waiver of the right to a speedy trial;
rather, the delay caused by a continuance granted for the defend-
ant is excluded from the 6-month period and counted against
the defendant.9 For purposes of this analysis, we assume, with-
out deciding, that Wells’ April 16, 2007, waiver of his speedy
trial rights was of no effect.
Wells argues in this case that the district court clearly erred
in finding that the period between January 19 and April 16,
4 State v. Williams, ante p. 133, 761 N.W.2d 514 (2009).
5 § 29-1207(1).
6 See 2008 Neb. Laws, L.B. 623.
7 State v. Sommer, 273 Neb. 587, 731 N.W.2d 566 (2007).
8 § 29-1207(4)(b).
9 State v. Knudtson, 262 Neb. 917, 636 N.W.2d 379 (2001).
STATe v. WeLLS 	479
Cite as 277 Neb. 476

2007, was excludable. But the record contradicts Wells’ argu-
ment. The record, as set forth above, affirmatively establishes
that Wells asked for a continuance on January 19, agreed to
a trial date of April 16, and acknowledged that the period
between those dates would not count for speedy trial purposes.
Perhaps Wells misunderstood—but the district court correctly
advised him, and the record provides ample support for the
court’s factual findings that Wells requested a continuance on
January 19 and that the period between January 19 and April
16 was excludable. Wells’ sole assignment of error is with-
out merit.
For the sake of completeness, we note the State’s argu-
ment that we should overrule our decisions in Gibbs10 and
Jacques,11 and hold that an order overruling a motion to dis-
charge based on speedy trial grounds is not a final, appealable
order. We recently rejected an identical argument in State
v. Williams12 and stand by our reasoning and conclusion in
that opinion.
Specifically, as in Williams, we are not persuaded by the
State’s argument that interlocutory appeals of this kind are
subject to unlimited abuse by the defendant. We noted in
Williams that “the right to appeal is triggered by denial of
a ‘nonfrivolous claim’ of violation of the statutory right to
a speedy trial.”13 As should be apparent from our discussion
above, the merits of Wells’ claim were dubious. But neither the
district court nor this court was asked to decide whether Wells’
speedy trial claim, or his appeal, was frivolous. moreover, if
the State is concerned about delay, and questions the merits of
an appeal, then this court’s rules—particularly § 2-107(B)(2)—
provide the State with an effective means of expediting appel-
late review.14
10 Gibbs, supra note 2.
11 Jacques, supra note 3.
12 Williams, supra note 4.
13 Id. at 140, 761 N.W.2d at 521-22, quoting Gibbs, supra note 2.
14 See Neb. Ct. R. App. P. § 2-107(B).
480 	277 NeBRASkA RePORTS

CONCLUSION
We again decline the State’s invitation to overrule our deci-
sions in Gibbs15 and Jacques.16 But the district court did not
clearly err in overruling Wells’ motion to discharge, and its
order is affirmed.
affirmed.
15 Gibbs, supra note 2.
16 Jacques, supra note 3.
marlo Johnson and Jennifer Johnson, appellants , v.
city of kearney, nebraska , appellee .
763 N.W.2d 103
Filed April 3, 2009. 	No. S-07-1194.
1. Statutes: Appeal and Error. Statutory interpretation is a question of law, which
an appellate court resolves independently of the trial court.
2. Special Assessments: Appeal and Error. In an appeal from the levy of spe-
cial assessments, the party contesting the assessment has the burden of show-
ing invalidity.
3. Taxation: Appeal and Error. An appeal from a board of equalization is tried by
the district court de novo.
4. Special Assessments: Evidence: Appeal and Error. On appeal from an action
brought pursuant to Neb. Rev. Stat. § 19-2422 (Reissue 2007), an appellate court
tries factual questions de novo on the record and reaches a conclusion indepen-
dent of the findings of the trial court, provided, where credible evidence is in con-
flict on a material issue of fact, the appellate court considers and may give weight
to the fact that the trial judge heard and observed the witnesses and accepted one
version of the facts rather than another.
5. Municipal Corporations: Ordinances: Improvements. A city council’s deter-
mination whether or not there are a sufficient number of objections to challenge
an ordinance, and prevent a city from going forward with a paving district, is an
exercise of a city council’s judicial function.
6. Municipal Corporations: Appeal and Error. When an entity such as a city
council is exercising its judicial functions, the petition in error statute is the
proper method for challenging such actions.
7. ____: ____. A city council is a tribunal whose decision can be reversed, vacated,
or modified through the petition in error process set forth in Neb. Rev. Stat.
§ 25-1901 (Reissue 2008).
8. Special Assessments: Improvements: Words and Phrases. Special assessments
are charges imposed by law on land to defray the expense of a local municipal
JOhNSON v. CITY OF keARNeY 	481
Cite as 277 Neb. 481