State v. Tamayo

of finding that Woolley and Marks Clare owed a duty to anyone
other than FFG and Presidents Trust.
Unlike the plaintiffs in Perez, FFG has not demonstrated that
Woolley knew her opinion would benefit the related entities or
that the alleged harm to the related entities was foreseeable.
FFG has also failed to specifically allege damages suffered by
the related entities and has been unable to allege a sufficiently
close connection between Woolley’s actions and the claimed
damages. FFG has been unable to demonstrate that impos-
ing liability under these circumstances would prevent future
harm. And, finally, we find that imposing liability under the
circumstances would impose an undue burden on the legal pro-
fession. Therefore, FFG’s second assignment of error is also
without merit.
CONCLUSION
We find that FFG did not have standing to sue, because any
damages would go to the receiver and not to FFG. We also
find that FFG did not demonstrate that Woolley owed it a “spe-
cial duty” separate and distinct from the duty Woolley owed
Presidents Trust. FFG cannot use the corporate form of an
LLC as a shield from liability while still attempting to recover
profits it claims to have lost. We also find that the related enti-
ties do not have standing to sue because there was no attorney-
client relationship between the related entities and Woolley,
and we decline to impose liability on the basis that the related
entities were third-party beneficiaries.
A ffirmed.
StAte of NebrASkA, Appellee , v.
JoSeph e. tAmAyo, AppellANt.
791 N.W.2d 152
Filed November 19, 2010. 	No. S-09-223.
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.
836 	280 NebrASkA rePOrTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:46 AM CST

2. Statutes: Appeal and Error. Statutory interpretation presents a question of law,
for which an appellate court has an obligation to reach an independent conclusion
irrespective of the determination made by the court below.
3. 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.
4. ____. 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 absolute discharge from the
offense charged.
5. Speedy Trial: Mental Competency: Case Disapproved. To the extent that State
v. Bolton, 210 Neb. 694, 316 N.W.2d 619 (1982), suggests that psychiatric treat-
ment is generally excludable as “other proceedings concerning the defendant”
under Neb. rev. Stat. § 29-1207(4)(a) (reissue 2008), Bolton is disapproved.
6. Speedy Trial: Mental Competency. An “examination and hearing on compe-
tency” within the meaning of Neb. rev. Stat. § 29-1207(4)(a) (reissue 2008) is
the statutory procedure for determining competency to stand trial established by
Neb. rev. Stat. § 29-1823 (reissue 2008).
Petition for further review from the Court of Appeals, iNbody,
Chief Judge, and SieverS and CASSel, Judges, on appeal thereto
from the District Court for Douglas County, J. pAtriCk mulleN,
Judge. Judgment of Court of Appeals affirmed as modified, and
cause remanded with direction.
James J. regan for appellant.
Jon bruning, Attorney General, James D. Smith, and Nathan
A. Liss for appellee.
heAviCAN, 	C.J., 	Wright, 	C oNNolly, 	gerrArd, 	StephAN,
mCC ormACk , and miller-lermAN, JJ.
gerrArd, J.
Joseph e. Tamayo was charged with murder and a weapons
charge and, before trial, filed a motion to have a psychiatric
expert appointed to evaluate him. The motion was granted, and
the psychiatric evaluation took several months. The issue pre-
sented in this appeal is whether the State proved that the time
associated with that evaluation was an automatically exclud-
able period under Nebraska’s speedy trial statutes.1 We find
1 See Neb. rev. Stat. § 29-1201 et seq. (reissue 2008).
STATe v. TAMAyO 	837
Cite as 280 Neb. 836

that it did not, and affirm the judgment of the Nebraska Court
of Appeals to that effect. but we modify the Court of Appeals’
decision to provide that the trial court should consider, upon
remand, whether there was nonetheless good cause for the
delay in bringing Tamayo to trial.
bACkGrOUND
Tamayo was charged on January 18, 2008, with the crimes
of first degree murder and use of a deadly weapon to com-
mit a felony. On April 7, he filed a “Motion for Psychiatric
expert,” for the purposes of determining his “mental capacity
to waive his Miranda rights and/or to voluntarily provide a
statement to law enforcement officers” and determining his
“mental capacity as it relates to the defense of not respon-
sible by reason of insanity under Nebraska law.” (emphasis
in original.)
On April 11, 2008, the district court sustained Tamayo’s
motion on his “request to hire the services of a psychiatrist . . .
as it relates to his ability to provide a voluntary statement and
to the possible defense of not responsible by reason of insan-
ity.” Tamayo, who was indigent, was “authorized to engage the
services of a psychiatrist for the above-stated purposes.” No
hearing on that motion appears in the record, and neither the
motion nor the court’s order expressly mentions any issue of
Tamayo’s competence to stand trial.
Dr. bruce Gutnik, a psychiatrist, was hired to evaluate
Tamayo. At some point, it was evidently decided that Gutnik
should also evaluate Tamayo’s competence to stand trial. The
record contains a letter from Gutnik to Tamayo’s counsel refer-
ring to a September 22, 2008, telephone call during which
Tamayo’s counsel had apparently asked for “an additional
report addressing . . . Tamayo’s competence to stand trial.”
Gutnik authored a “competence evaluation” dated September
24, 2008, in which Gutnik stated that Tamayo was seen, at the
request of his attorney, “to provide an independent psychiatric
evaluation to determine his sanity at the time of the alleged
crime and competence to stand trial and to give statements to
the police.” In the end, Gutnik opined that Tamayo was “mar-
ginally competent to stand trial.”
838 	280 NebrASkA rePOrTS

On October 15, 2008, a hearing was held on the report. The
court opened the hearing by stating that the court had “entered
an order regarding the allowance of a psychiatrist, by [Tamayo],
to determine possible defenses in this case. And I think that
perhaps that order’s been expanded upon.” The State replied by
explaining that “in prior discussions it was somewhat regarding
insanity but also kind of a general mental state of [Tamayo].
And in that regard the issue of competency was raised and was
addressed by [Gutnik].” Tamayo’s counsel agreed that Tamayo
was examined for competence to assist in his defense and stand
trial “pursuant to my request and the Court’s order.” Gutnik’s
report was entered into evidence, and on October 20, the court
entered an order finding Tamayo competent to stand trial.
On January 30, 2009, Tamayo filed a motion for abso-
lute discharge. The dispositive issue was the extent to which
the time attributable to Tamayo’s psychiatric evaluation was
excludable from the 6-month calculation. The district court
found it “clear from the time of [Tamayo’s] counsel[’s] request
for the appointment of a psychiatrist that such an appointment
was for the purpose of determining [Tamayo’s] competency to
stand trial in addition to other related matters regarding state-
ments he may have given to police.” Accordingly, the court
concluded that the entire period from April 8 to October 20,
2008, was excludable under § 29-1207(4)(a), which excludes
from speedy trial calculations “[t]he period of delay resulting
from other proceedings concerning the defendant, including,
but not limited to, an examination and hearing on competency
and the period during which he or she is incompetent to stand
trial . . . .” The court found that the period was excludable as
“an examination and hearing on competency” and overruled the
motion to discharge.
The Court of Appeals reversed that decision.2 The district
court’s finding that Tamayo’s competency had been at issue
from April 8, 2008, onward was, according to the Court of
Appeals, “simply and clearly wrong.”3 The Court of Appeals
found that the earliest suggestion in the record that Tamayo’s
2 State v. Tamayo, 18 Neb. App. 430, 783 N.W.2d 240 (2010).
3 Id. at 437, 783 N.W.2d at 246.
STATe v. TAMAyO 	839
Cite as 280 Neb. 836

competency to stand trial was at issue was the September 22
telephone call to Gutnik from Tamayo’s counsel, asking Gutnik
to opine on Tamayo’s competency to stand trial.
The Court of Appeals also acknowledged this court’s deci-
sion in State v. Bolton,4 which the Court of Appeals conceded
suggests that a defendant’s psychiatric evaluation or treat-
ment is generally excludable under § 29-1207(4)(a), not as
“an examination and hearing on competency,” but as “other
proceedings concerning the defendant.” However, the Court of
Appeals found “[n]o other case” using “this expansive notion
that merely because a defendant is undergoing psychiatric eval-
uation or treatment, the speedy trial clock is tolled.”5 Instead,
the Court of Appeals found that Bolton was inconsistent with
a definition of “proceeding” we later explained in State v.
Murphy.6 So, the Court of Appeals reversed the decision of the
district court and ordered Tamayo’s absolute discharge.7 We
granted the State’s petition for further review.
ASSIGNMeNT OF errOr
The State assigns that the Court of Appeals erred by con-
cluding that Tamayo was entitled to a statutory discharge.
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.8 but statutory interpretation presents a ques-
tion of law, for which an appellate court has an obligation to
reach an independent conclusion irrespective of the determina-
tion made by the court below.9
4 State v. Bolton, 210 Neb. 694, 316 N.W.2d 619 (1982).
5 Tamayo, supra note 2, 18 Neb. App. at 444, 783 N.W.2d at 250.
6 State v. Murphy, 255 Neb. 797, 587 N.W.2d 384 (1998).
7 See Tamayo, supra note 2.
8 State v. Wells, 277 Neb. 476, 763 N.W.2d 380 (2009).
9 State v. Vela, 279 Neb. 94, 777 N.W.2d 266 (2010), cert. denied 560 U.S.
945, 130 S. Ct. 3364, 176 L. ed. 2d 1256.
840 	280 NebrASkA rePOrTS

ANALySIS
[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.”10 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.11 And, under
§ 29-1208, if a defendant is not brought to trial before the
running of the time for trial, as extended by excludable peri-
ods, he or she shall be entitled to absolute discharge from the
offense charged.12 We are aware that the speedy trial statutes
were amended operative July 15, 2010—we have referred in
this opinion to the version of the statutes that was in effect at
the time of the trial court proceedings, but note that the amend-
ments would not have affected our analysis.
In this case, Tamayo was charged on January 18, 2008. The
district court found, and neither party disputes, that 107 days
were excludable due to Tamayo’s pretrial filings of a plea in
abatement and a motion to suppress evidence. With those 107
days added, the State had until Monday, November 3, to bring
Tamayo to trial.13
Tamayo filed his motion to discharge on January 30, 2009.
So, the critical issue is whether any time associated with
Tamayo’s psychiatric evaluation is excludable from the 6-month
speedy trial calculation. The State contends it is. Specifically,
the State makes three arguments in support of its assignment of
error: (1) State v. Bolton14 is controlling, (2) § 29-1207(4)(a) is
not limited to determinations of competency to stand trial, and
(3) the Court of Appeals did not properly follow the correct
standard of review. We consider each argument in turn.
10 § 29-1207(1).
11 State v. Lebeau, ante p. 238, 784 N.W.2d 921 (2010).
12 Id.
13 See State v. Rieger, 270 Neb. 904, 708 N.W.2d 630 (2006).
14 Bolton, supra note 4.
STATe v. TAMAyO 	841
Cite as 280 Neb. 836

S tate v. B olton
We note that the State’s reliance on Bolton has been raised
for the first time on further review—the State’s brief to the
Court of Appeals did not cite the case. but, because the Court
of Appeals discussed Bolton in its opinion, we will consider it
as well.
As noted above, § 29-1207(4)(a) provides that a defendant’s
speedy trial clock is tolled during “[t]he period of delay result-
ing from other proceedings concerning the defendant, including,
but not limited to, an examination and hearing on competency
and the period during which he or she is incompetent to stand
trial . . . .” That provision was at issue in Bolton, in which the
defendant was charged with assault. A capias was issued after
the defendant did not cooperate with counsel in seeking a psy-
chiatric evaluation. but before the defendant could be arrested,
his family filed a petition to have him committed as a mentally
ill dangerous person, and on February 27, 1980, he was placed
in the county hospital by the county board of mental health.
The defendant was diagnosed with possible schizophrenia and
transferred to the Lincoln regional Center.
On December 18, 1980, the superintendant of the regional
center sent a status update to the district court, which included
a psychologist’s note dated April 29, 1980, opining that the
defendant was competent to stand trial. On February 4, 1981,
after further examinations and a hearing, the court found the
defendant competent to stand trial. A bench trial was held on
February 25, and the defendant was convicted.
On appeal, the defendant claimed he had not received a
speedy trial. He argued, among other things, that the period
excludable due to his incompetency ended on April 29, 1980,
when his psychologist had opined that he was competent. but
we rejected that argument, noting that according to the medical
records, the defendant was still participating in mental health
treatment well after that. This court explained that during the
entire period between the defendant’s commitment and the
court’s finding that he was competent, the defendant “was
engaged in treatment programs for his psychiatric condition.”15
15 Id. at 699, 316 N.W.2d at 622.
842 	280 NebrASkA rePOrTS

So, we concluded, the entire period between February 27,
1980, and February 4, 1981, was “attributable to psychiatric
evaluations and treatment” and was “excludable as an ‘other
proceeding’ under the provisions of § 29-1207(4)(a).”16 We
also stated, as an alternative basis for our decision, that the
defendant’s incompetency ended only when the district court
found him competent to stand trial.17
but we revisited § 29-1207(4)(a), although not in the con-
text of mental health treatment, in State v. Murphy.18 The
issue in Murphy was the period of time excludable due to the
defendant’s depositions. Specifically, the defendant had filed a
motion to take depositions, which was sustained. The defend-
ant took the depositions, then later filed a motion to discharge
on speedy trial grounds, which was overruled. On appeal from
the denial of his motion to discharge, the defendant argued
that the period of time excludable under § 29-1207(4)(a) due
to his motion to take depositions ended when the motion was
granted—not, as the State contended, when the depositions
were complete.
We agreed, holding that while the time until the deposi-
tions were complete was not automatically excluded under
§ 29-1207(4)(a), it could be excludable (with appropriate find-
ings) under § 29-1207(4)(f), which excludes “periods of delay
not specifically enumerated in this section, but only if the
court finds that they are for good cause.” In particular, we
explained that
§ 29-1207(4)(a) refers only to “proceedings.” black’s
Law Dictionary 1204 (6th ed. 1990) states that a “pro-
ceeding” is “[i]n a more particular sense, any applica-
tion 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.” If the term
“proceedings” was read broadly, rather than in its “par-
ticular sense,” § 29-1207(4)(a) would include any delay
16 Id.
17 See id.
18 Murphy, supra note 6.
STATe v. TAMAyO 	843
Cite as 280 Neb. 836

at trial that “concerns” the defendant. If the Legislature
had intended that the term “proceeding” encompass such
a broad purview, there would have been little reason for
the Legislature to have provided for exclusion under
§ 29-1207(4)(f), the “catchall provision.”[19] Thus, the
term “proceeding” must be read narrowly.
Clearly, a motion for depositions is an “application
to a court of justice” and, thus, is a “proceeding,” as the
statute specifically provides. However, once that applica-
tion has been granted, no further application to a court of
justice is required to obtain the depositions. Of course, a
defendant may later make a motion to compel the taking
of depositions. Such a motion would be a “proceeding”
under § 29-1207(4)(a), and the time required for its dis-
position would be automatically excluded. Nonetheless,
to the extent the parties rely on their own devices to
secure the necessary depositions, the taking of the depo-
sitions is not a “proceeding” within the meaning of
§ 29-1207(4)(a).
Thus, the period of time from the trial court’s ruling
on a motion for depositions until the depositions are
concluded is not excludable under § 29-1207(4)(a). . . .
However, such a period may or may not be excluded under
§ 29-1207(4)(f), with the inquiry turning upon whether
there is “good cause” for the delay.20
[5] We agree with the Court of Appeals that our language
in Bolton is inconsistent with our more recent decision in
Murphy. As noted above, in Bolton, the “other proceeding” at
issue was the psychiatric treatment the defendant was receiving
after his family had him committed—even though that treat-
ment was not initiated pursuant to an “application to a court
of justice.” Bolton clearly relies on the broader understanding
of “proceeding” that we expressly repudiated in Murphy. And
Murphy is the more recent, and more definitive, construc-
tion of § 29-1207(4)(a). So, to the extent that Bolton suggests
19 State v. Turner, 252 Neb. 620, 629, 564 N.W.2d 231, 237 (1997).
20 Murphy, supra note 6, 255 Neb. at 803-04, 587 N.W.2d at 389.
844 	280 NebrASkA rePOrTS

that psychiatric treatment is generally excludable as “other
proceedings concerning the defendant” under § 29-1207(4)(a),
Bolton is disapproved.
exAmiNAtioN ANd heAriNg oN C ompeteNCy
The State also argues that even if Tamayo’s psychiatric
evaluation is not an “other proceeding,” it is still excluded
under § 29-1207(4)(a) as a period of delay resulting from “an
examination and hearing on competency.” The State contends
that the phrase “examination and hearing on competency” does
not specify competency to stand trial. So, the State argues,
evaluation of Tamayo’s competency to do other things is also
excludable under that provision.
We, however, reject the State’s argument because it is
inconsistent with the context of the language upon which it
relies, and with the statute as a whole. Section 29-1207(4)(a)
excludes “an examination and hearing on competency and the
period during which [the defendant] is incompetent to stand
trial.” In that context, it is difficult to read “competency” as
intending anything other than competency to stand trial. And
the other specific exclusions set forth in § 29-1207(4)(a)—
such as the “time from filing until final disposition of pretrial
motions of the defendant” and the “time consumed in the
trial of other charges against the defendant”—are all consist-
ent with the definition of “proceeding” adopted in Murphy,
because they require a specific application to the court that
requires formal judicial disposition. This permits a period of
time excluded under § 29-1207(4)(a) to be readily calculated,
because the beginning and end of an excludable period are
clearly defined. Similarly, an examination on competency to
stand trial is a specific statutory “proceeding” initiated when
the question is brought to the attention of the court and con-
cluded when and if the court finds the defendant competent to
stand trial.21
Were we to construe § 29-1207(4)(a) as suggested by the
State, on the other hand, the periods of time excludable due
to evaluations for various “general competency” or “insanity”
21 See Neb. rev. Stat. § 29-1823 (reissue 2008).
STATe v. TAMAyO 	845
Cite as 280 Neb. 836

determinations would be, in many cases, quite unclear. Many
such evaluations would not, for instance, require inpatient
hospitalization, nor would the court necessarily be informed
of particular evaluations arranged by privately retained coun-
sel. Oftentimes the defense relies on its own devices to secure
mental evaluations for various purposes—sometimes culminat-
ing in issues at trial, sometimes not. The trial court in this case
was aware of the pending examination only because Tamayo,
as an indigent defendant, needed the court’s approval to hire
an expert.
And it would not be clear when the time excludable due to
such evaluations would end. For example, under circumstances
such as those of the instant case, a defendant may choose to
go forward with an insanity defense or a defense based on
the voluntariness of his statements to law enforcement, or he
may, at some point, choose to abandon one or both of those
defenses. There is no clear point in time at which the “proceed-
ings” associated with a general competency/insanity evaluation
would conclude. Therefore, using § 29-1207(4)(a) to exclude
the time for evaluations relating to various “general compe-
tency” and “insanity” determinations would be to automatically
exclude a potentially indeterminate period of time. It would be
inconsistent with the purpose and structure of § 29-1207(4)(a)
to read an “examination and hearing on competency” to include
the vague and often undefined periods that would be implicated
by any sort of evaluation that could be described as involv-
ing “competency.”
[6] In short, we hold that an “examination and hearing on
competency” within the meaning of § 29-1207(4)(a) is the
well-defined statutory procedure for determining competency
to stand trial established by § 29-1823, because it is con-
sistent with the other provisions of the statute and our deci-
sion in Murphy. Therefore, we find no merit to the State’s
contention that § 29-1207(4)(a) should be read to encompass
any other determinations that could conceivably be character-
ized in terms of “competency.” As discussed more completely
below, other types of psychiatric evaluation or treatment are
more appropriately considered under the catchall provision
of § 29-1207(4)(f), with the inquiry turning upon whether the
846 	280 NebrASkA rePOrTS

defendant’s evaluation or treatment provided good cause for
any delay in bringing the defendant to trial.22
StANdArd of revieW
Finally, the State argues that the Court of Appeals did not
abide by the correct standard of review which, as noted above,
requires an appellate court to affirm a trial court’s factual
findings unless they are clearly erroneous.23 The State argues
that the trial court was entitled to rely upon the statement of
Tamayo’s counsel that Tamayo was examined for competency
to stand trial. but we agree with the Court of Appeals. As
explained above, the issue is not what sort of evaluation Gutnik
was actually performing—it is the time period that can be
excluded due to an “examination and hearing on competency”
pursuant to §§ 29-1207(4)(a) and 29-1823.
The record establishes beyond reasonable dispute that the
first time any question as to Tamayo’s competency to stand
trial was brought before the trial court—in other words, when
the “proceeding” on competency was initiated by application
to the court—was October 15, 2008. That proceeding was con-
cluded on October 20, when the court entered its order finding
Tamayo competent to stand trial. This results in an excludable
period of 5 days, which is well short of what would be neces-
sary to bring Tamayo’s trial within the statutory time limit.
good CAuSe for delAy
We note, however, that although general psychiatric evalu-
ation and treatment are not automatically excludable under
§ 29-1207(4)(a), such a period might be excluded under
§ 29-1207(4)(f), which permits exclusion of “[o]ther periods
of delay not specifically enumerated in this section, but only
if the court finds that they are for good cause.” And given the
issues implicated by Tamayo’s motion to appoint a psychiatrist,
and the related representations made by counsel, it is certainly
possible that the State would be able to demonstrate that
22 See Murphy, supra note 6.
23 Wells, supra note 8.
STATe v. TAMAyO 	847
Cite as 280 Neb. 836

Tamayo’s psychiatric evaluation provided good cause to delay
bringing him to trial.24
but because the trial court in this case decided Tamayo’s
motion to discharge on the basis of § 29-1207(4)(a), it had
no reason to make the specific findings as to good cause or
causes which are required if a court relies on § 29-1207(4)(f).25
Accordingly, although we affirm the judgment of the Court
of Appeals reversing the trial court’s decision, the trial court
should be instructed, upon remand, to determine whether any
of the delay in bringing Tamayo to trial is excludable for
good cause, and we modify the Court of Appeals’ judgment to
that extent.26
CONCLUSION
We conclude that the trial court erred in overruling Tamayo’s
motion to discharge based on § 29-1207(4)(a), and for that
reason, we affirm the Court of Appeals’ judgment reversing the
trial court’s order. but we modify the Court of Appeals’ judg-
ment to reflect that the trial court should be instructed, upon
remand, to determine whether Tamayo’s psychiatric evalua-
tion provided good cause for any delay in bringing Tamayo
to trial.
A ffirmed AS modified, ANd CAuSe
remANded With direCtioN.
24 See, e.g., State v. Feldhacker, 267 Neb. 145, 672 N.W.2d 627 (2004).
25 See, e.g., Murphy, supra note 6.
26 See id.
heAviCAN, C.J., dissenting.
I respectfully dissent from the decision of the majority
affirming as modified, and remanding with direction, the deci-
sion of the Nebraska Court of Appeals.
In reaching this conclusion, I concur with Judge Cassel’s
dissent to the Court of Appeals’ decision in this case. In his
dissent, Judge Cassel reasoned that the standard of review
in this case places a high burden on the defendant and that
Tamayo was unable to overcome this burden and show that
the district court clearly erred in its factual finding regarding
848 	280 NebrASkA rePOrTS

whether the evaluation period in question was a “competency
proceeding.”
In reaching his conclusion, Judge Cassel noted that Tamayo’s
counsel stated, in part, that the purpose of the evaluation at
issue was to examine Tamayo “‘for competence to assist me in
his defense and to stand trial.’”1 I agree that this was a judicial
admission on the part of Tamayo. And when this admission is
considered with other evidence suggesting Tamayo was also
being evaluated for competence, it is clear to me that the dis-
trict court did not clearly err in reaching its conclusion that a
“competency proceeding” was held from April 8 to October
20, 2008.
I would reverse the judgment of the Court of Appeals and
instead affirm the judgment of the district court denying the
motion to discharge.
1 State v. Tamayo, 18 Neb. App. 430, 447, 783 N.W.2d 240, 252 (2010)
(Cassel, Judge, dissenting) (emphasis omitted).
StAte of NebrASkA, Appellee , v.
rAymoNd mAtA, Jr ., AppellANt.
790 N.W.2d 716
Filed November 19, 2010. 	No. S-10-121.
1. Pleadings. The decision to grant or deny an amendment to a pleading rests in the
discretion of the trial court.
2. Postconviction: Right to Counsel. In the absence of a showing of an abuse of
discretion, the failure to provide court-appointed counsel in postconviction pro-
ceedings is not error.
3. ____: ____. Where the record shows that a justiciable issue of law or fact is pre-
sented in a postconviction action, an indigent defendant is entitled to the appoint-
ment of counsel.
4. Judgments: Words and Phrases. An abuse of discretion occurs when a trial
court’s decision is based upon reasons that are untenable or unreasonable or if its
action is clearly against justice or conscience, reason, and evidence.
Appeal from the District Court for Scotts bluff County: leo
dobrovolNy, Judge. reversed and remanded with directions.
STATe v. MATA 	849
Cite as 280 Neb. 849