State v. Vela-Montes

STATE v. VELA-MONTES 	679
Cite as 287 Neb. 679
State of NebraSka, appellee, v.
victor vela-MoNteS, appellaNt.
844 N.W.2d 286
Filed March 21, 2014. 	No. S-12-589.
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. Speedy Trial. The statutory right to a speedy trial is set forth in Neb. Rev. Stat.
§§ 29-1207 and 29-1208 (Cum. Supp. 2012).
3. ____. To calculate the deadline for trial under the speedy trial statutes, a
court must exclude the day the State filed the information, count forward 6
months, back up 1 day, and then add any time excluded under Neb. Rev. Stat.
§ 29-1207(4) (Cum. Supp. 2012).
4. Speedy Trial: Waiver. The statutory right to a speedy trial is not unlimited and
can be waived.
5. Speedy Trial: Waiver: Appeal and Error. A defendant’s motion to discharge
based on statutory speedy trial grounds will be deemed to be a waiver of that
right under Neb. Rev. Stat. § 29-1207(4)(b) (Cum. Supp. 2012) where (1)
the filing of such motion results in the continuance of a timely trial to a date
outside the statutory 6-month period, as calculated on the date the motion to
discharge was filed, (2) discharge is denied, and (3) that denial is affirmed
on appeal.
6. Speedy Trial: Waiver. Once a defendant has waived his statutory right to a
speedy trial, an exact calculation of days remaining on the speedy trial clock is
no longer required.
Appeal from the District Court for Douglas County: J.
M ichael 	coffey, 	Judge. 	Motion 	for 	rehearing 	sustained.
Affirmed.
Daniel R. Stockmann, of Dunn & Stockmann, for appellant.
Jon Bruning, Attorney General, and Kimberly A. Klein for
appellee.
heavicaN, c.J., Wright, coNNolly, StephaN, MccorMack,
and M iller-lerMaN, JJ.
Wright, J.
NATURE OF CASE
In June 2012, Victor Vela-Montes filed his second motion to
discharge based upon the statutory right to a speedy trial. After
the district court overruled the motion, Vela-Montes appealed.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:36 AM CST

680 	287 NEBRASKA REPORTS
However, while the appeal was pending, he moved to withdraw
and dismiss the appeal. We dismissed Vela-Montes’ appeal
upon his motion without determining how much time remained
on the speedy trial clock.
The State sought rehearing due to our failure to address
how much time remained on Vela-Montes’ speedy trial clock.
We 	sustained 	the 	State’s 	motion 	for 	rehearing. We 	now
conclude that Vela-Montes waived his statutory right to a
speedy trial and that there was no need to calculate the time
remaining to bring him to trial. We affirm the dismissal of
Vela-Montes’ appeal.
SCOPE OF REVIEW
[1] As a general rule, a trial court’s determination as to
whether charges should be dismissed on speedy trial grounds
is a factual question which will be affirmed on appeal unless
clearly erroneous. State v. Mortensen, ante p. 158, 841 N.W.2d
393 (2014).
FACTS
On February 26, 2009, Vela-Montes was charged with two
counts of first degree sexual assault. Trial was set for February
1, 2010, but on January 19, Vela-Montes filed a motion for
discharge based upon his statutory right to a speedy trial. The
district court overruled the motion.
As a result of the district court’s decision to overrule
Vela-Montes’ first motion to discharge, two appeals were filed
in the Court of Appeals. The first appeal, State v. Vela-Montes,
No. A-10-106, was summarily remanded on July 7, 2010, to
the district court with direction that the court make “specific
findings of each period of delay excludable under Neb. Rev.
Stat. § 29-1207(4)(a) to (f) [(Cum. Supp. 2012)].” After the
district court made its findings, Vela-Montes appealed again.
In State v. Vela-Montes, 19 Neb. App. 378, 807 N.W.2d 544
(2011), the Court of Appeals affirmed the district court’s denial
of absolute discharge and held that 45 days remained on the
speedy trial clock. We granted a petition for further review,
and we affirmed without opinion. See State v. Vela-Montes, 283
Neb. 530, 810 N.W.2d 749 (2012). The mandate on our deci-
sion was issued on April 4, 2012, and was filed with the clerk

STATE v. VELA-MONTES 	681
Cite as 287 Neb. 679
of the district court on April 9. On May 4, the district court
entered an order on the mandate.
On May 16, 2012, the district court set the matter for
trial on June 11. But on June 1, Vela-Montes filed a second
motion for discharge. He alleged that the 45 days remaining
on his speedy trial clock would expire before his trial. The
court determined that the June 11 trial date was within the
45 days remaining on the speedy trial clock and overruled
Vela-Montes’ motion.
Vela-Montes appealed the district court’s denial of his sec-
ond motion to discharge. While the appeal was pending, both
parties separately moved to dismiss the appeal. In October
2012, the State moved for summary dismissal, arguing that
the appeal was frivolous and should not affect the speedy trial
clock. This motion was overruled. Later, in January 2013,
Vela-Montes moved to withdraw and dismiss his appeal. In
the motion, Vela-Montes stated, “After review of the record
and relevant case law, Appellant acknowledges that this appeal
is no longer meritorious and wishes to withdraw it from the
appellate docket.” We sustained Vela-Montes’ motion to dis-
miss with the following order: “Motion of appellant to dismiss
appeal sustained; appeal dismissed; mandate to issue accord-
ingly.” We did not determine how much time remained on the
speedy trial clock.
The State timely moved for rehearing of Vela-Montes’
motion to dismiss. No response was filed by Vela-Montes. We
sustained the State’s motion for rehearing. Pursuant to Neb. Ct.
R. App. P. § 2-111(B)(1) (rev. 2008), the case was submitted
without oral argument.
ASSIGNMENT OF ERROR
The State claims we erred by failing to address how much
time remained on Vela-Montes’ speedy trial clock after the
dismissal of an admittedly nonmeritorious interlocutory speedy
trial appeal.
ANALYSIS
[2,3] The statutory right to a speedy trial is set forth in
Neb. Rev. Stat. §§ 29-1207 and 29-1208 (Cum. Supp. 2012).
State v. Brooks, 285 Neb. 640, 828 N.W.2d 496 (2013). Under

682 	287 NEBRASKA REPORTS
§ 29-1207(1), “[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.” To
calculate the deadline for trial under the speedy trial statutes,
a court must exclude the day the State filed the information,
count forward 6 months, back up 1 day, and then add any time
excluded under § 29-1207(4). Brooks, supra. If a defendant is
not brought to trial before the running of the time for trial as
provided for in § 29-1207, as extended by excluded periods, he
or she shall be entitled to his or her absolute discharge from the
offense charged and for any other offense required by law to be
joined with that offense. § 29-1208.
[4] The statutory right to a speedy trial is not unlim-
ited and can be waived. State v. Mortensen, ante p. 158,
841 N.W.2d 393 (2014). One form of waiver is provided in
§ 29-1207(4)(b), which states in part that “[a] defendant is
deemed to have waived his or her right to speedy trial when
the period of delay resulting from a continuance granted at the
request of the defendant or his or her counsel extends the trial
date beyond the statutory six-month period.” The waiver in
§ 29-1207(4)(b) is a permanent waiver of the statutory right to
a speedy trial. See Mortensen, supra.
[5] In Mortensen, ante at 167, 841 N.W.2d at 401, this court
determined that the waiver in § 29-1207(4)(b) extended to “a
continuance necessitated by a defendant’s motion to discharge
where the continuance has the effect of moving trial beyond
the statutory 6-month period.” Accordingly, we held that
a defendant’s motion to discharge based on statutory
speedy trial grounds will be deemed to be a waiver of
that right under § 29-1207(4)(b) where (1) the filing of
such motion results in the continuance of a timely trial
to a date outside the statutory 6-month period, as cal-
culated on the date the motion to discharge was filed,
(2) discharge is denied, and (3) that denial is affirmed
on appeal.
Mortensen, ante at 169-70, 841 N.W.2d at 402-03.
Vela-Montes’ first motion to discharge was filed before
§ 29-1207(4)(b) became operative on July 15, 2010. See 2010
Neb. Laws, L.B. 712, § 15. Thus, that motion could not waive

STATE v. VELA-MONTES 	683
Cite as 287 Neb. 679
his statutory right to a speedy trial in the manner established
by Mortensen, supra. However, we find that Vela-Montes
waived his statutory right to a speedy trial with his second
motion to discharge, which was filed after the operative date
of § 29-1207(4)(b).
Vela-Montes initially appealed the district court’s decision
to overrule his second motion to discharge. Before the Court of
Appeals ruled on the appeal, he moved to have the appeal with-
drawn and dismissed. On rehearing of that dismissal, we now
affirm the district court’s denial of discharge for the reason that
Vela-Montes’ second motion to discharge did not demonstrate
that he had been denied a speedy trial.
In Vela-Montes’ second motion to discharge, he argued that
the 45 days remaining on his speedy trial clock ran out on
May 24, 2012, and that his trial scheduled for June 11 was
thus untimely. But these arguments had merit only if, after the
appellate proceedings surrounding Vela-Montes’ first motion to
discharge, the speedy trial clock started to run again on April
9, the day the Court of Appeals’ mandate was filed in the dis-
trict court.
We have previously held that “[w]here further proceedings
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 appel-
late court.” See State v. Williams, 277 Neb. 133, 141-42, 761
N.W.2d 514, 523 (2009). Accordingly, Vela-Montes’ speedy
trial clock did not start to run again until May 4, when the
district court entered its order on the appellate mandate.
Using this date as the basis for the speedy trial calculation,
when Vela-Montes filed his second motion to discharge on
June 1, there were still 17 days remaining for the State to
bring him to trial. Because Vela-Montes’ speedy trial rights
were not violated, we affirm the denial of his second motion
to discharge.
In 	addition 	to 	resulting 	in 	the 	denial 	of 	discharge,
Vela-Montes’ second motion to discharge necessitated the con-
tinuance of trial from a date within the statutory 6-month
period to a date outside the 6-month period, as calculated on

684 	287 NEBRASKA REPORTS
the date he filed the motion. Vela-Montes’ second motion con-
tinued the trial scheduled for June 11, 2012. The district court
overruled the motion, and we affirmed the denial of discharge,
because when Vela-Montes filed his motion, there were 17
days remaining on the speedy trial clock, or until June 18. The
continuance necessitated by Vela-Montes’ motion is still in
effect pending resolution of this appeal and has moved his trial
well beyond the 17 days remaining when he filed the motion.
Because Vela-Montes’ second motion to discharge resulted in
the continuance of a timely trial to a date outside the statutory
6-month period, as calculated on the date the motion to dis-
charge was filed, and because discharge was denied and that
denial was affirmed on appeal, we conclude that Vela-Montes
has waived his statutory right to a speedy trial.
[6] In State v. Mortensen, ante p. 158, 170, 841 N.W.2d
393, 403 (2014), we held that once a defendant has waived his
statutory right to a speedy trial, “an exact calculation of days
remaining on the speedy trial clock is no longer required.”
Therefore, in light of Vela-Montes’ waiver, it was not necessary
to calculate the amount of time remaining to bring Vela-Montes
to trial under § 29-1207. Thus, when the district court reac-
quires jurisdiction over the cause, the court shall set a date to
bring Vela-Montes to trial.
CONCLUSION
Because Vela-Montes waived his statutory right to a speedy
trial, we affirm the order of the district court which overruled
Vela-Montes’ motion for discharge. The judgment of the dis-
trict court is affirmed.
affirMed.
caSSel, J., not participating.