State v. Craven

in order to defeat that intent. State v. Ramirez, 274 Neb. 873,
745 N.W.2d 214 (2008). We will not construe this statute in
Lankford’s favor, because it is not ambiguous. Lankford can-
not manufacture ambiguity by merely stating that he reads the
statute in a different way.
Excessive Sentence.
Lankford also argues that the court imposed an excessive
sentence. The factors to be considered by a sentencing court
are well known, and we need not recite them here. See State
v. Archie, 273 Neb. 612, 733 N.W.2d 513 (2007). When a
sentence imposed within statutory limits is alleged on appeal
to be excessive, the appellate court must determine whether
the sentencing court abused its discretion in considering and
applying these factors as well as any applicable legal principles
in determining the sentence to be imposed. Id. The sentence
imposed was within statutory limits, and we have examined
the record concerning all relevant factors and applicable legal
principles. We find no abuse of discretion by the district court
in its determination of the sentence.
CONCLUSION
We find that the district court did not err in sentencing
Lankford. The district court did not err in ordering that the
15-year license revocation prescribed in § 60-6,197.03 com-
mence upon Lankford’s release from imprisonment. The dis-
trict court did not abuse its discretion in sentencing Lankford
to 4 to 5 years’ imprisonment.
A ffirmed .
S tAte of N ebrASkA, Appellee , v .
dAvid J. C rAveN, AppellANt .
757 N.W.2d 132
Filed October 21, 2008. 	No. A-07-1155.
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.
STATe v. CrAveN 	127
Cite as 17 Neb. App. 127
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:15 AM CST

2. Speedy Trial. Neb. rev. Stat. § 29-1207 (reissue 1995) requires that a defendant
be tried within 6 months after the filing of the information, unless the 6 months
are extended by any period to be excluded in computing the time for trial.
3. ____. If a defendant is not brought to trial before the running of the time for
trial, as extended by excluded periods, he or she shall be entitled to an absolute
discharge from the offense charged.
4. ____. 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.
5. 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.
6. Records: Proof: Appeal and Error. In appellate proceedings, unless there is
proof to the contrary, the journal entry in a duly authenticated record of the trial
court imports absolute verity.
7. Speedy Trial: Motions for Continuance. The terminology chosen by the defend-
ant or defense counsel does not dictate whether or not a delay resulting from a
continuance is excludable for the purposes of speedy trial calculation.
8. ____: ____. When a nonlawyer makes a motion for continuance made on behalf
of a defendant in a criminal case, such motion constitutes a nullity and cannot
form the basis for an exclusion from the speedy trial calculation under Neb. rev.
Stat. § 29-1207(4)(b) (reissue 1995).
Appeal from the District Court for Douglas County: JAmeS
t. G leASoN, Judge. Affirmed in part, and in part reversed and
remanded for further proceedings.
Christopher J. Lathrop for appellant.
Jon Bruning, Attorney General, and erin e. Leuenberger
for appellee.
iNbody, Chief Judge, and moore and CASSel, Judges.
iNbody, Chief Judge.
INTrODUCTION
David J. Craven appeals the order of the Douglas County
District Court denying his motion to discharge, on the ground
that his statutory right to a speedy trial was violated. Craven
contends that the district court erred in finding that certain
periods of time were excludable from the speedy trial calcula-
tion. This case also highlights some of the problems that can
arise when courts do not compel parties to follow the statutes
128 	17 NeBrASkA AppeLLATe repOrTS

requiring motions to continue to be made by written motion
and supported by an affidavit which contains factual allega-
tions demonstrating good cause or sufficient reason necessi-
tating postponement of the proceedings. See, Neb. rev. Stat.
§ 25-1148 (reissue 1995); Neb. rev. Stat. § 29-1206 (reissue
1995). For the reasons set forth herein, we affirm in part,
reverse in part, and remand for further proceedings.
STATeMeNT OF FACTS
On April 2, 2007, Craven was charged in Douglas County
District Court with first degree sexual assault, in violation of
Neb. rev. Stat. § 28-319(1)(c) (Cum. Supp. 2006), a Class II
felony. The charge was later amended to first degree sexual
assault of a child, in violation of Neb. rev. Stat. § 28-319.01
(Cum. Supp. 2006), a Class IB felony. On April 4, Craven
filed a motion for mutual and reciprocal discovery, which was
granted by the court on April 13.
On October 29, 2007, Craven filed a motion to discharge on
the ground that his statutory right to a speedy trial was violated.
A hearing was held on that same day, during which Craven’s
counsel, Lawrence Whelan, was allowed to withdraw, because
he was going to be called as a witness at the hearing on the
motion to discharge. The hearing on the motion to discharge
then took place with Craven represented by new counsel. Three
witnesses testified at the hearing: Michelle Lanouette, the
judge’s bailiff; Whelan, Craven’s previous attorney; and Daniel
Curnyn, a legal assistant in Whelan’s law office. One exhibit
was received at this hearing, a copy of the trial docket in this
case, which set forth, in relevant part: On June 12, “[p]retrial
conference continued on defendant’s motion to 6/27/07 9:30
a.m.”; on June 27, “[p]retrial conference continued on defend-
ant’s motion. Signed order re: audio/vide[o]tapes. Motions
(if any) to be heard 8/3/07 9:00 a.m. Jury trial 10/29/07 9:00
a.m.”; and on August 3, 2007, “[o]n defense counsel’s motion,
motions continued until trial date of 10/29/07 9:00 a.m.”
Lanouette testified that a pretrial conference was scheduled
for June 12, 2007, and that the conference was continued to
June 27 on defendant’s motion. Lanouette testified that on
June 12, when neither Craven nor Whelan appeared, she called
STATe v. CrAveN 	129
Cite as 17 Neb. App. 127

Whelan’s office and spoke to a member of Whelan’s office staff
who indicated that Whelan was not available to be present at
the hearing and requested that the hearing be continued.
According to Lanouette, the June 27, 2007, pretrial confer-
ence was continued on defendant’s motion after Whelan again
did not appear for the hearing. Lanouette testified that on June
27, she called Whelan’s office, and that Whelan or his staff
stated the defense might want to file pretrial motions, so the
hearing date was set for August 3. Lanouette also testified that
either Whelan or his staff asked to continue the pretrial confer-
ence. However, Lanouette testified that no motions were filed
and that the defense did not appear at the August 3 hearing.
Lanouette testified that upon Whelan’s failure to appear at
the August 3, 2007, hearing, she and the prosecutor called
Whelan’s office and spoke to either Whelan or his staff, who
requested that the hearing be canceled and continued until the
date of trial should the defense file any motions. Lanouette
specifically testified that Whelan or his staff requested that the
matter be continued on defense’s motion.
Whelan testified that around April 8, 2007, he had been
retained to represent Craven. Whelan admitted that he had
received a notice of the pretrial conference scheduled for June
12. According to Whelan, he knew that he had a conflict with
that date, because he and his wife had an out-of-state trip
planned from June 10 through June 20, so he directed Curnyn
to contact the court and the prosecutor to let them know that
he was unavailable and to get the hearing date reset. Whelan
acknowledges that the June 12 hearing was reset at his direc-
tion, that he gave his staff authority to reset the date, and that
the individual who reset the date, Curnyn, works as his repre-
sentative to the court at times. However, Whelan testified that
he did not authorize a request for a continuance of the June 12
hearing, but merely authorized that the hearing be reset.
regarding the June 27, 2007, hearing, Whelan testified that
he did attend but arrived late for the hearing and that he knew
the prosecutor had already left the courtroom, because he met
her as he was getting off the elevator. According to Whelan,
he took an order to Lanouette for the judge’s signature and
he and Lanouette had a conversation about continuing the
130 	17 NeBrASkA AppeLLATe repOrTS

pretrial conference. Whelan denied asking to continue or reset
the pretrial conference. Whelan admits that he told Lanouette
he might want to file some pretrial motions, but states that
Lanouette said she would set the pretrial motion date for
August 3 because trial was scheduled for October 29 and there
was not sufficient time to have any more pretrial hearings.
Whelan testified that the docket entry from June 27 stating
the defendant made a motion to continue the pretrial is inac-
curate. Whelan further stated that he did not have any contact
with the court on or before August 3, but he could not recall
whether he instructed his staff to notify the court that the
August 3 hearing date was not necessary because the defense
was not filing any pretrial motions. Whelan did not attend
court on August 3.
Curnyn testified that he is employed as Whelan’s legal assist-
ant. He stated that he talked with Lanouette about needing a
new date for the June 12, 2007, hearing because Whelan was
going to be out of town. According to Curnyn, Lanouette asked
when Whelan was going to get back and the hearing was set for
June 27 based on the judge’s schedule and Whelan’s schedule.
Curnyn denied asking to continue the pretrial conference; he
stated that he asked to have it “reset” or “changed.” Curnyn
further testified that on August 3, at Whelan’s direction, he
informed the court that Whelan would not be filing any pretrial
motions on Craven’s behalf and would not need the motion
date. Curnyn did not ask to continue the motion date at that
time and did not indicate to the court that Whelan might be fil-
ing motions at some later date.
In overruling Craven’s motion for discharge, the district
court specifically stated:
The Court accords to a docket entry, which is an order
of the Court, a presumption of regularity.
The Court determines that the time period from April
4th to April 13 is excludable time. The time between June
12th and June 27th is excludable time. The time between
June 27th and August 3rd is excludable time. And the
time between August 3rd and today’s date is exclud-
able time.
Craven has timely appealed to this court.
STATe v. CrAveN 	131
Cite as 17 Neb. App. 127

ASSIGNMeNT OF errOr
On appeal, Craven’s assigned errors can be consolidated
into the following issue: The district court erred in denying his
motion to discharge.
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. 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).
ANALYSIS
Craven contends that the district court erred in denying his
motion to discharge based upon a violation of his statutory
right to a speedy trial. He contends that the court erred in
finding that certain periods of time were excludable from the
speedy trial calculation.
[2-4] Neb. rev. Stat. § 29-1207 (reissue 1995) requires that
a defendant be tried within 6 months after the filing of the
information, unless the 6 months are extended by any period to
be excluded in computing the time for trial. State v. Sommer,
supra; State v. Vasquez, supra. If a defendant is not brought
to trial before the running of the time for trial, as extended
by excluded periods, he or she shall be entitled to an absolute
discharge from the offense charged. State v. Sommer, supra;
State v. Vasquez, supra. 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. State v. Sommer, supra; State v.
Vasquez, supra.
[5,6] 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. State
v. Sommer, supra. As a general rule, a trial court’s determi-
nation as to whether charges should be dismissed on speedy
trial grounds is a factual question which will be affirmed on
132 	17 NeBrASkA AppeLLATe repOrTS

appeal unless clearly erroneous. Id. Moreover, in Nebraska, the
controlling rule is that in appellate proceedings, unless there
is proof to the contrary, the journal entry in a duly authenti-
cated record of the trial court imports absolute verity. State v.
Deckard, 272 Neb. 410, 722 N.W.2d 55 (2006).
In the instant case, with respect to each such time period,
the district court generally found the time to be excludable
regarding a presumption of regularity to its own docket entries.
Thus, the issue presented to this court is whether the district
court was clearly erroneous in according the presumption of
regularity to the docket entries relating to each of the con-
tested periods.
Since the information was filed in the district court on April
2, 2007, absent any excludable calculations, the last day to
bring Craven to trial was October 2. However, there are four
periods of time which the district court found to be excludable
in calculating Craven’s statutory right to a speedy trial: (1)
April 4 to 13—the time from the filing of Craven’s motion for
discovery to the court’s ruling thereon, (2) June 12 to 27—the
date of the first scheduled pretrial hearing to the date of the
rescheduled pretrial hearing, (3) June 27 to August 3—the date
of the rescheduled pretrial hearing to the date set for the han-
dling of pretrial motions, and (4) August 3 to October 29—the
date set for trial and the date that Craven filed his motion for
discharge. We address each of the time periods in turn.
April 4 to 13, 2007.
The first potentially excludable time period is from April 4
to 13, 2007. Craven filed a motion for discovery on April 4,
which motion was granted by the district court on April 13.
Thus, Craven’s motion for discovery was pending for a total
of 9 days. Craven admits that this time is excludable. See,
§ 29-1207(4)(a) (time from filing until final disposition of pre-
trial motions of defendant is excludable); State v. Washington,
269 Neb. 728, 695 N.W.2d 438 (2005) (motion for discovery
filed by defendant is pretrial motion, and time period during
which it is pending should be excluded for speedy trial calcula-
tion purposes). Thus, the 9 days that Craven’s discovery motion
STATe v. CrAveN 	133
Cite as 17 Neb. App. 127

was pending must be excluded from the speedy trial calculation
in this case.
June 12 to 27, 2007.
The next time period at issue is the rescheduling of the pre-
trial conference from June 12 to June 27, 2007. The district
court found that the presumption of regularity of the June 12
docket entry, setting forth “[p]retrial conference continued on
defendant’s motion to 6/27/07 [at] 9:30 a.m.,” had not been
rebutted and that the time period from June 12 to 27 was
excludable from the speedy trial calculation.
Section 29-1207(4)(b) provides that a period of delay result-
ing from a continuance granted at the request or with the consent
of the defendant or the defendant’s counsel shall be excluded in
computing the time for speedy trial. However, Craven contends
that because Curnyn and Whelan requested that the hearing be
“reset” or “changed” rather than “continued,” the time period
from June 12 to 27 should not be excluded for the purposes of
speedy trial calculation. We disagree.
[7] The terminology chosen by the defendant or defense
counsel does not dictate whether or not a delay resulting
from a continuance is excludable for the purposes of speedy
trial calculation. Basically, if it looks like a continuance and
sounds like a continuance, it is a continuance, and if it is made
at the defendant’s request or with the defendant’s consent,
it is excludable for the purposes of speedy trial calculation.
regardless of the terminology chosen by defense counsel, the
result is the same. If we were to accept Craven’s argument that
exclusion for speedy trial purposes depends upon the verbiage
chosen by defense counsel, this would allow manipulation of
the system and would lead to absurd results. However, we still
must consider whether the particular request in this case was
made at the request of Craven’s counsel.
As we previously noted, the June 12, 2007, docket entry set
forth “[p]retrial conference continued on defendant’s motion
to 6/27/07 [at] 9:30 a.m.” Further, the evidence unmistak-
ably shows that Curnyn, Whelan’s legal assistant, talked to
Lanouette about resetting the June 12 pretrial hearing because
Whelan was unavailable on the June 12 date, as he was out
134 	17 NeBrASkA AppeLLATe repOrTS

of state at the time. This constitutes an oral request for a con-
tinuance. However, Neb. rev. Stat. § 7-101 (reissue 2007)
prohibits any person from practicing as an attorney or coun-
selor at law in any action or proceeding to which he or she is
not a party, in any court of record of this state, unless he or
she has been previously admitted to the bar by order of the
Nebraska Supreme Court. Section 7-101 further proclaims,
“It is hereby made the duty of the judges of such courts to
enforce this prohibition.” See, also, Neb. Ct. r. §§ 3-1001 to
3-1005 (defining “practice of law,” prohibiting unauthorized
practice of law, and specifying exceptions). It has long been
held that such actions taken by nonbar members are a nul-
lity. See Niklaus v. Abel Construction Co., 164 Neb. 842, 83
N.W.2d 904 (1957) (proceedings in suit by person not entitled
to practice are nullity).
Although this court is aware that there are some instances
where the general rule that the motion made by a nonlawyer
constitutes a nullity does not apply, see In re Estate of Cooper,
275 Neb. 297, 746 N.W.2d 653 (2008) (filing of statement
of claim in probate proceeding does not constitute practice
of law), § 29-1207(4)(b) clearly requires the request for or
consent to a continuance to be made by the defendant or the
defendant’s counsel. In a slightly different context, in State
v. Roundtree, 11 Neb. App. 628, 637, 658 N.W.2d 308, 316
(2003), this court observed that “[o]ral or other informal state-
ments are obviously a poor procedure when speedy trial rights
are involved.” Clearly, if the motion had been made in writ-
ing, Curnyn could not have signed the pleading. See Neb. Ct.
r. pldg. § 6-1111(a)(1) (every pleading, written motion, and
other paper shall be signed by at least one attorney of record
in attorney’s individual name or, if party is not represented by
attorney, shall be signed by party). Similarly, the notion that
Curnyn would have been permitted to appear in court and make
an oral motion is untenable. The prohibition does not disappear
merely because the action occurs by telephone.
[8] Since the evidence unmistakably shows that Curnyn, a
legal assistant employed by Craven’s then counsel of record,
and not Craven’s counsel, made the oral request for continu-
ance, the request was a nullity and cannot form the basis for
STATe v. CrAveN 	135
Cite as 17 Neb. App. 127

a period of exclusion under § 29-1207(4)(b). This is so, even
though Whelan admits that he gave Curnyn the authority to
reset the hearing and that it was done at Whelan’s direction.
When a nonlawyer makes a motion for continuance made on
behalf of a defendant in a criminal case, such motion con-
stitutes a nullity and cannot form the basis for an exclusion
from the speedy trial calculation under § 29-1207(4)(b). Thus,
neither Craven nor his attorney requested a continuance of
the June 12, 2007, hearing, the district court erred in afford-
ing the presumption of regularity of the June 12 docket entry,
and the 15 days from June 12 to 27 are not excludable for the
purposes of the speedy trial calculation.
June 27 to August 3, 2007.
The third potentially excludable time period is from June
27 to August 3, 2007, which was the date of the hearing for
Craven’s pretrial motions. The district court found that the
presumption of regularity of the June 27 docket entry, setting
forth “[p]retrial conference continued on defendant’s motion,”
had not been rebutted and that the time period from June 27 to
August 3 was excludable from the speedy trial calculation.
Lanouette’s testimony supported the journal entry, in that, on
June 27, 2007, either Whelan or his staff stated that the defense
might want to file pretrial motions, so the hearing date was set
for August 3. Whelan admitted that he appeared in the judge’s
chambers and engaged in a discussion with Lanouette about
continuing the pretrial conference. In this instance, the evi-
dence permits (but certainly does not compel) the conclusion
that Whelan made an oral request for a continuance. Therefore,
the district court did not clearly err in determining that the 37
days between June 27 and August 3 are attributable to Craven
as periods of delay resulting from proceedings related to pre-
trial motions pursuant to § 29-1207(4)(a).
August 3 to October 29, 2007.
The fourth potentially excludable time period is from August
3 to October 29, 2007. The district court found that the pre-
sumption of regularity of the August 3 docket entry, setting
forth “[o]n defense counsel’s motion, motions continued until
136 	17 NeBrASkA AppeLLATe repOrTS

trial date of 10/29/07 [at] 9:00 a.m.,” had not been rebutted
and that this time period was excludable from the speedy
trial calculation.
Lanouette testified that upon Whelan’s failure to appear at
the August 3, 2007, hearing, she and the prosecutor called
Whelan’s office and spoke to either Whelan or his staff, who
requested that the hearing be canceled and continued until the
date of trial should the defense file any motions. Whelan testi-
fied that he did not have any contact with the court on August
3. Curnyn testified that at Whelan’s direction, on August 3, he
made a call to the judge’s bailiff to inform the court that no
pretrial motions would be filed on Craven’s behalf and that the
motion date would not be needed.
This evidence clearly establishes that Whelan did not make
a motion for continuance of the August 3, 2007, hearing and
that if such a motion was made, it was made by a nonlawyer
and constitutes a nullity. Therefore, the district court’s contrary
factual finding was clearly erroneous and the time period from
August 3 to October 29 is not excludable for the purposes of
the speedy trial calculation.
CONCLUSION
In sum, although we found that two of the time periods were
not excludable in the speedy trial calculation, the two remain-
ing time periods had excludable periods totaling 46 days,
which extended that last date upon which Craven’s trial could
be started beyond October 29, 2007, which was the date he
filed his motion to dismiss on speedy trial grounds. Thus, the
district court’s denial of Craven’s motion to discharge based
upon the alleged violation of his statutory right to a speedy
trial was not clearly erroneous. However, by our calculations,
there remain only 19 days to timely commence Craven’s trial
upon remand. Therefore, the district court’s order is affirmed
in part and reversed in part, and the matter is remanded for
further proceedings.
A ffirmed iN pArt , ANd iN pArt reverSed ANd
remANded for further proCeediNGS.
STATe v. CrAveN 	137
Cite as 17 Neb. App. 127