State v. Blakeman

the blood test results and because the amended sworn report
was received more than 10 days after the receipt of the blood
test results and was not properly sworn. We also find that under
§ 60-498.01(5)(a), an arresting officer must submit a sworn
report within 10 days after receiving the blood test results to
provide the Department with jurisdiction over revocation pro-
ceedings. As such, we find that the Department failed to obtain
jurisdiction to revoke Stoetzel’s driver’s license. We affirm the
decision of the district court to reverse the Department’s revo-
cation of Stoetzel’s license.
A ffirmed .
S tAte of N eBrASkA, Appellee , v .
rodNey e. B lAkemAN, AppellANt .
744 N.W.2d 717
Filed January 29, 2008. 	No. A-07-103.
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 final trial date under Neb. Rev. Stat. § 29-1207 (Reissue 1995)
is determined by excluding the date the information was filed, counting forward
6 months, and then backing up 1 day.
3. Speedy Trial: Indictments and Informations: Complaints. Although Nebraska’s
speedy trial act expressly refers to indictments and informations, the act also
applies to prosecutions on complaint.
4. Speedy Trial: Complaints: Time. In cases commenced and tried in county court,
the 6-month period within which an accused must be brought to trial begins to run
on the date the complaint is filed.
5. Speedy Trial: Indictments and Informations: Time. When considering felony
offenses, it is well established that the statutory 6-month speedy trial period com-
mences to run from the date the information is filed in district court and not from
the time a complaint is filed in county court.
Appeal from the District Court for box butte County: B riAN
S ilvermAN, Judge. Affirmed.
bell 	Island, 	of 	Island, 	Huff 	& 	Nichols, 	P.C., 	L.L.O.,
for appellant.
362 	16 NebRASkA APPeLLATe RePORTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:16 AM CST

Jon bruning, Attorney General, and erin e. Leuenberger for
appellee.
irwiN, S ieverS, and moore, Judges.
irwiN, Judge.
I. INTRODUCTION
Rodney e. blakeman appeals an order of the district court
for box butte County, Nebraska, denying blakeman’s motion
for absolute discharge on the basis of alleged statutory and
constitutional speedy trial violations. Although blakeman was
ultimately charged in an information filed in the district court
with two felonies, two misdemeanors, and three infractions,
he seeks to have this court declare that the time during which
a complaint and amended complaint were pending in county
court should be “tacked” onto the time the information was
pending to calculate the speedy trial time. With respect to the
felony offenses, we find blakeman’s request directly contrary
to established law. With respect to the misdemeanor and infrac-
tion offenses, we decline to determine whether the time should
be tacked on, because even according to blakeman’s argument
his speedy trial rights were not violated. We affirm.
II. bACkGROUND
We have reviewed the record in its entirety. because the rele-
vant factual matters in this appeal concern the dates of various
filings, motions, and rulings thereon, we will set forth relevant
factual matters in the discussion section below.
III. ASSIGNMeNT OF eRROR
blakeman’s only assignment of error is that the district court
erred in denying his motion for absolute discharge.
IV. ANALYSIS
1. S tANdArd 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. bLAkeMAN 	363
Cite as 16 Neb. App. 362

2. S tAtUtory right to S peedy triAl
blakeman argues that the district court erred in failing to find
a violation of “the speedy trial act.” See brief for appellant at
4. As such, we first address whether the motion to discharge
should have been sustained on statutory grounds, pursuant to
Neb. Rev. Stat. § 29-1207 (Reissue 1995). We conclude that
blakeman’s statutory speedy trial right was not violated with
respect to the felony offense or with respect to the misdemeanor
and infraction offenses.
[2-4] Section 29-1207 provides that every person charged for
any offense shall be brought to trial within 6 months of the day
the information is filed. The final trial date under § 29-1207
is determined by excluding the date the information was filed,
counting forward 6 months, and then backing up 1 day. State
v. Schmader, 13 Neb. App. 321, 691 N.W.2d 559 (2005).
Although Nebraska’s speedy trial act expressly refers to indict-
ments and informations, the act also applies to prosecutions
on complaint. See id. In cases commenced and tried in county
court, the 6-month period within which an accused must be
brought to trial begins to run on the date the complaint is filed.
See id. If a defendant is not brought to trial before the running
of the time for trial, as extended by excluded periods, he shall
be entitled to his absolute discharge from the offense charged.
State v. Knudtson, 262 Neb. 917, 636 N.W.2d 379 (2001).
(a) Felony Offenses
We first address the speedy trial calculation for the two felony
offenses charged in the information. based on a plain reading
of existing authority, we conclude that the motion for discharge
was properly denied concerning the felony offenses, because
the clock did not properly start to run until the information
was filed, approximately 3 months prior to blakeman’s motion
for discharge.
[5] When considering felony offenses, it is well established
that the statutory 6-month speedy trial period commences to
run from the date the information is filed in district court and
not from the time a complaint is filed in county court. See
State v. Hutton, 11 Neb. App. 286, 648 N.W.2d 322 (2002). In
State v. Hutton, this court applied that rule to a situation where
364 	16 NebRASkA APPeLLATe RePORTS

a complaint initially charged a felony shoplifting offense, an
amended complaint was filed changing the charge to a misde-
meanor shoplifting offense, and another amended complaint was
filed changing the charge back to a felony shoplifting offense.
In that situation, the clock did not start to run until an informa-
tion was eventually filed in district court, and none of the time
that any of the complaints were pending in county court was
tacked on in calculating the 6-month speedy trial time.
In the instant case, the information charging blakeman with
two felony offenses, including felony driving under the influ-
ence, was filed on October 24, 2006. The fact that blakeman
was previously charged with misdemeanor driving under the
influence in the initial complaint is comparable to the fact that
the defendant in State v. Hutton was, for a time, charged with a
misdemeanor offense instead of the felony offense. Just as we
did in State v. Hutton, we conclude that the clock did not start
to run until the information was filed in district court, regardless
of what charges were alleged in the previous complaints filed
in county court.
because we conclude that the clock did not begin to run with
respect to the two felony offenses until the information was
filed in district court on October 24, 2006, blakeman’s motion
for discharge filed on January 29, 2007, only came approxi-
mately 3 months after the clock began to run. The district court
was not clearly erroneous in finding that the motion should be
denied, with respect to the felony offense.
(b) Misdemeanor and Infraction Offenses
We next address the speedy trial calculation for the two
misdemeanor offenses and the three infraction offenses. We
conclude that even if blakeman’s argument that some period
of time during which these offenses were pending in county
court pursuant to a complaint should be included in the speedy
trial calculation, the district court was not clearly erroneous in
denying the motion for discharge. even if blakeman’s argument
has merit, an issue we explicitly decline to resolve, the 6-month
time period would not have expired on January 29, 2007, when
blakeman filed his motion.
STATe v. bLAkeMAN 	365
Cite as 16 Neb. App. 362

blakeman argues that the lesson to be learned by a reading
of State v. Boslau, 258 Neb. 39, 601 N.W.2d 769 (1999); State
v. Timmerman, 12 Neb. App. 934, 687 N.W.2d 24 (2004); and
State v. Hutton, supra, is that the clock should begin to run
when the trial court has “the ability” to hear the matter. brief
for appellant at 5. blakeman argues that when the initial com-
plaint was filed, the county court had the ability to hear the
misdemeanor and infraction offenses, and that accordingly, the
clock should have started to run with respect to those offenses
when the initial complaint was filed.
blakeman argues that State v. Timmerman, supra, demon-
strates that when felony and misdemeanor offenses are both
charged together in a complaint, the clock does not start with
respect to any of the offenses until the information is filed
because including all of the offenses in the same charging
document indicates an intent to try the misdemeanor offenses
in the district court along with the felony offenses. In State v.
Timmerman, this court held that “although the misdemeanors
were originally charged in the county court, it [was] clear that
the State intended that the misdemeanors be tried not in the
county court, but in the district court along with the felony”
that was also charged in the original complaint. 12 Neb. App.
at 939, 687 N.W.2d at 28. blakeman argues that the present
case is different because the initial complaint did not charge
any felony offenses, indicating an intent to try all of the misde-
meanor and infraction offenses in the county court.
even assuming, however, that we accept blakeman’s argu-
ment and consider the possibility that the clock could start to
run with respect to the misdemeanor and infraction offenses
when the initial complaint was filed, blakeman’s own logic
would demonstrate that the 6-month period had not yet run
when blakeman filed his motion for discharge. If the initial
complaint indicated an intent to try the misdemeanor offenses
in county court, and if that indication of intent was sufficient
to start the clock running, then the filing of the amended com-
plaint charging felony offenses along with the misdemeanor and
infraction offenses would indicate an intent to no longer try the
misdemeanor and infraction offenses in county court. Rather,
366 	16 NebRASkA APPeLLATe RePORTS

the amended complaint would indicate an intent to proceed
with trying all of the offenses in the district court. See State
v. Timmerman, supra. Thus, the clock would “stop” when the
amended complaint was filed in county court and would not
start again until the information was filed in district court.
The initial complaint was filed on May 8, 2006. If we accept
blakeman’s argument, the last day to bring him to trial would
have been November 8, if there were no excludable time periods.
As noted, however, accepting blakeman’s argument also means
that the time between the filing of the amended complaint on
August 18 and the filing of the information on October 24, a
period of 67 days, would be considered excludable time. This
would move the last day to bring blakeman to trial to January
14, 2007. January 14, 2007, was a Sunday, so the proper date
for our purposes would be January 15, 2007.
Additionally, blakeman was granted a continuance from May
11 to May 18, 2006, a period of 7 days; and a continuance from
July 6 to August 3, 2006, a period of 28 days. Adding these
35 days to the calculation would move the last day to bring
blakeman to trial to February 19, 2007.
We additionally note that blakeman filed a motion for dis-
covery on August 4, 2006. The record presented to us does not
indicate whether that motion was ever ruled on or what impact
it should have on the speedy trial calculations. As such, and
because it is not necessary to our resolution, we need not con-
sider this motion in our calculation.
At the very least, even assuming we accept blakeman’s argu-
ment that the clock should have started to run when the initial
complaint was filed, the speedy trial time would not yet have
expired when blakeman filed his motion for absolute discharge.
At the very least, the speedy trial time would not have expired
before February 19, 2007, 21 days after blakeman’s motion was
filed. We need not expressly determine whether blakeman’s
argument does have merit, because even if it does, his argument
on appeal is without merit. The district court was not clearly
erroneous in overruling the motion to discharge with respect to
the misdemeanor and infraction offenses.
STATe v. bLAkeMAN 	367
Cite as 16 Neb. App. 362

3. coNStitUtioNAl S peedy triAl
Although blakeman’s motion for discharge referenced both
his statutory and constitutional speedy trial rights, his brief on
appeal does not assign or argue any issue concerning his consti-
tutional speedy trial right. As such, we will not further address
the issue. See State v. Karch, 263 Neb. 230, 639 N.W.2d 118
(2002) (appellate court does not review questions concerning
constitutional speedy trial right when not raised in both trial
and appellate court).
V. CONCLUSION
We find no merit to blakeman’s assertions that the district
court erred in denying his motion for discharge. We affirm.
A ffirmed .
S tAte of N eBrASkA, AppellANt , v .
deNNiS e. S olomoN, Appellee .
744 N.W.2d 475
Filed January 29, 2008. 	No. A-07-297.
1. Judgments: Appeal and Error. When dispositive issues on appeal present ques-
tions of law, an appellate court has an obligation to reach an independent conclu-
sion irrespective of the decision made by the court below.
2. Judgments: Records. Neither Neb. Rev. Stat. § 25-2729 (Reissue 1995) nor Neb.
Rev. Stat. § 25-1301 (Reissue 1995) specifically require a file stamp for entry
of judgment.
3. Judgments: Final Orders: Records. A journal entry signed by the judge and
filed is all that Neb. Rev. Stat. § 25-2729(3) (Reissue 1995) requires for a
final order.
Appeal 	from 	the 	District 	Court 	for 	Douglas 	County:
J ohN d. hArtigAN, J r ., Judge. Sentence vacated, and cause
remanded for resentencing.
Donald W. kleine, Douglas County Attorney, and Jennifer
Meckna for appellant.
Robert M. Schartz and Michael G. Monday, of Sodoro, Daly
& Sodoro, P.C., for appellee.
368 	16 NebRASkA APPeLLATe RePORTS