McCormack, J.
The defendant appeals from the denial of his motion for absolute discharge, alleging that the delay in bringing him to trial violated his statutory and constitutional rights to a speedy trial and his right to due process. At issue is whether the defendant's indefinite motion for continuance was automatically extinguished by the State's amended information, thereby relieving the defendant of his duty under Neb.Rev.Stat. § 29-1207(4)(b) (Cum.Supp. 2012) to give notice of request for trial in order to end the continuance and its accompanying statutory waiver of the right to a speedy trial. We affirm the judgment of the district court.
On November 12, 2010, a complaint was filed in county court alleging seven counts against Logan Hettle. Count 1 was sexual penetration of T.S. without consent on or about August 1 through 31, 2009. Count 2 was knowingly restraining or abducting T.S. on or about August 1 through 31, 2009. Count 3 was sexual penetration of L.F. without consent on or about July 4 through August 31, 2010. Count 4 was sexual contact of L.F. without consent on or about July 4 through August 31, 2010. Count 5 was sexual contact of T.S. without consent on or about August 1 through 31, 2009. Count 6 was attempted sexual contact of A.S. without consent on or about October 5, 2009. Count 7 was sexual contact of C.N. without consent on or about June 1 through August 31, 2008.
On January 19, 2011, counts 1 through 3 were bound over to district court and counts 4 through 7 were dismissed. On February 2, the State filed an information in district court charging four counts against Hettle. Count 1 charged sexual penetration of T.S. without consent on or about August 1 through 31, 2009, a Class II felony. Count 2 charged restraining or abducting T.S. under terrorizing circumstances or risk of serious bodily injury on or about August 1 through 31, 2009, a Class IIIA felony. Count 3 charged sexual penetration of L.F. without consent on or about July 4 through August 31, 2010, a Class II felony. Count 4
Hettle was arraigned. On February 14, 2011, defense counsel filed a motion to transfer to juvenile court, which was denied on April 12. A defense motion for discovery made on June 1 was ruled on June 27. On July 19, the court appointed the Commission on Public Advocacy (the Commission) to represent Hettle. On July 21, the Commission asked for a continuance for research and discovery, with no stated end date. On August 4, the Commission moved for release of a video, which was ordered released on August 5.
On December 12, 2011, the State filed an amended information alleging five counts. Count 1 was identical to count 1 of the original information. Count 2 charged the same crime of sexual penetration of L.F. without consent, but extended the date range to May 1 through September 31, 2009. Count 3 charged the same crime of sexual penetration of L.F. without consent, but narrowed the date to on or about July 4, 2010. Count 4 increased the charge to sexual penetration of L.F. without consent, a Class II felony, and narrowed the date to on or about August 6, 2010. Count 5 charged attempted sexual assault of A.S. on or about October 5, 2009, a Class II misdemeanor.
On December 30, 2011, Hettle moved to sever counts 1 and 5 from counts 2 through 4.
For reasons that are not clear from the record, on March 28, 2012, a probable cause hearing was held in county court wherein the court found probable cause as to counts 1 through 4, but dismissed count 5 of the amended information. Hettle's objection to the county court's jurisdiction was overruled, and the case was bound over again to district court.
On October 22, 2012, the district court denied Hettle's December 30, 2011, motion to sever. That same date, the court scheduled trial for April 2 through 5, 2013. Hettle lodged no objection to the proposed trial date. Instead, when the district court asked the Commission, "Unless you have time earlier, then we could bump somebody else," the Commission replied, "It's up to the Court. I don't know what you want to do. That's fine, Judge."
On April 1, 2013, Hettle filed a motion for absolute discharge under § 29-1207(3); article I, § 11, of the Constitution of the State of Nebraska; and the 5th, 6th, and 14th Amendments to the U.S. Constitution. Hettle has been free on bail during the entire pendency of the charges against him. The court denied the motion for discharge, and Hettle appeals.
Hettle assigns that the district court erred in overruling his motion for absolute discharge.
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.
The meaning and interpretation of a statute are questions of law, which we review independently of the lower court.
If a defendant is not brought to trial before the running of the time for
It is axiomatic that under the speedy trial statutes, an accused cannot and should not be permitted to take advantage of a delay where the accused is responsible for the delay by either action or inaction.
In State v. Mortensen,
Hettle concedes that when the newly appointed Commission filed its motion to continue on July 21, 2011, the 6-month statutory period had not yet run. The motion stated:
The motion was for an indefinite continuance.
Hettle gives no particular reason why his counsel failed to give the district court notice of request for trial. He instead presents a complex argument as to how the State's amendment of the charges on December 12, 2011, operated as a matter of law to abandon and dismiss the original information and thereby extinguish his motion for indefinite continuance. At the same time, Hettle argues that the nonexcludable time that passed under the original information should be tacked onto the nonexcludable time that passed under the amended information. With such extinguishment of the motion for continuance and tacking of nonexcludable periods, Hettle argues the 6-month statutory period was exceeded by January 2013.
Hettle's arguments stem from case law in which we combined tacking and tolling in calculating the 6-month statutory speedy trial period. Under this tacking-and-tolling approach, the time between dismissal of an information and refiling is not includable, or is tolled, for purposes of the statutory 6-month period.
In State v. French,
We said in French that the amended complaint, which "charges a different crime, without charging the original
From this tacking-and-tolling case law, Hettle asserts four legal premises. First, Hettle asserts that an information alleging a different crime, but also alleging the original crimes, is an "amended" information, not an "amendment to" the information, and therefore operates as a dismissal and abandonment of the original information in its entirety. Second, Hettle asserts that if the original information is thus dismissed and abandoned, any outstanding defense motions are automatically extinguished. Third, Hettle asserts that nonexcluded time pending in the district court under a dismissed and abandoned information was not, like his motions, extinguished, and must be tacked onto the time pending for the same charges under the amended information. Finally, in contravention of the authority already set forth above,
Applying these assertions more specifically to the facts of this case, Hettle argues that all the felony counts of the amended information relate to the same incidents or were committed simultaneously with the felonies alleged in the original information. The State agrees. Hettle then asserts that the misdemeanor charge was never properly dismissed by the county court. Again, the State agrees. Hettle asserts that the addition of this new misdemeanor charge transformed the amended information into a dismissal and abandonment of the original information, pursuant to French. Here, the State and Hettle part ways.
Hettle concedes that the prolonged period of time his motions were pending in district court under the amended information were excludable; therefore, extinguishing his indefinite continuance, alone, would not put the trial beyond the 6-month statutory period. Hettle asserts, however, that the period of nonexcludable time pending for the felony charges under the original information in district court and the nonexcludable time the misdemeanor charge was pending in county court should be tacked onto the nonexcludable time pending under the amended information. The State has characterized this as Hettle's trying to "have [his] cake and eat it, too."
We have never addressed tacking and tolling when the amended information charges a different crime but also the original crimes. We begin by observing that other courts consistently hold under such circumstances that the original and new charges run on different speedy trial clocks, so long as the "new" charge was not one required to be joined with the
The reason for such a rule is that as to the charges the government is not required to join with the offenses previously charged, the government could easily obtain a "fresh speedy trial clock" by simply waiting until completion of the prosecution for the original charges and beginning a new prosecution on the additional charges.
We agree with this reasoning. Whether there may be any other objection to the joinder of the original and the additional charges is another question not pertinent to the issue before us.
We derive from this, and it comports with common sense, that the original charges have not been "abandoned" or "dismissed" when an amended complaint or information continues to make those charges, but additionally charges a different crime. The time continues to run as to the charges that have not changed. If there is no abandonment or dismissal of the charges, a tacking-and-tolling analysis is superfluous.
Thus, assuming for the moment that tacking-and-tolling case law translates in any way to the affirmative duty under § 29-1207(4)(b), the motion for continuance would at most be extinguished as to the new misdemeanor crime alleged in the amended information. We agree with the State that Hettle belies this very point by arguing that the time pending under the original information for the felony charges should be tacked onto the time pending for the felony charges under the amended information. It is logically inconsistent that time pending under abandoned and dismissed charges ought to tack onto time pending under the amended information that supposedly abandoned and dismissed those very same charges. Charges are either the same or different. They cannot be different for purposes of extinguishing a motion for continuance but the same for purposes of effectively continuing to run the statutory speedy trial clock.
However, we do not accept the premise that a French "dismissal" of the preceding information, or any part thereof, is determinative of whether an indefinite motion for continuance has been extinguished. We doubt that in other circumstances, where a favorable motion or order had been made under the preceding information, Hettle would venture such an argument. While certainly two complaints or informations cannot coexist at the same moment, it does not necessarily follow that every act or motion made under a superseded complaint or information is dismissed,
In fact, at least one court has held that prior tolling motions continue to apply to cases refiled after actual dismissals, so long as the refiled charges arose from the same or related incidents or acts of the dismissed indictment, complaint, or information.
Admittedly, no court has addressed the very precise question of whether a prior defense motion for indefinite continuance remains effective as to all charges in an amended information when the amended information charges some of the same crimes as the preceding information, as well as additional crimes unrelated to the same facts of the preceding information. But we find that the mandate of § 29-1207(4)(b) is clear. As we said in State v. Mortensen, there is no language in the statute indicating intent to limit the scope of the waiver provided therein, and we will not read into the statute a meaning that was not there.
We have no basis from which to conclude that the Legislature intended a motion for indefinite continuance in an ongoing prosecution under the same case number to apply only to those charges that were pending at the time the motion was made, but not as to any charges later added by amendment. It would make little sense to apply a motion for continuance, based on the general need to prepare for trial, to only old charges and not new. Motions for continuance are to continue the trial. Without severance of the individual charges from the pending prosecution, a motion for continuance is not applied piecemeal to certain charges under the information, but not to others. And as one court has explained, tolling motions that operate by law do not require, at the time they are made, knowledge of future additional charges.
If Hettle no longer wished for his indefinite motion for continuance to remain operative as a waiver to his statutory right to a speedy trial, he could have easily given the court notice of his request for trial, in accordance with § 29-1207(4)(b). He did not do so. While Hettle argues that it should have been apparent that he no longer needed time to prepare for trial, the statute puts the onus on the defendant. The State has no obligation to second-guess the defendant's strategic decisions, although it would have been free to press
The State's addition of the misdemeanor charge to the information did not change Hettle's obligations under § 29-1207(4)(b). Therefore, as provided in § 29-1207(4)(b), the waiver and excludable period under the motion for continuance did not end until either Hettle gave the court notice of trial or a trial commenced on the court's own motion. Because neither of those events has occurred, the 6-month statutory period has not run and Hettle's motion for absolute discharge was properly denied.
Hettle next argues that the court erred in denying his motion for discharge based on the constitutional right to a speedy trial. The constitutional right to a speedy trial is guaranteed by U.S. Const. amend. VI and Neb. Const. art. I, § 11. The constitutional right to a speedy trial and the statutory implementation of that right exist independently of each other.
A speedy trial, generally, is one conducted according to prevailing rules and proceedings of law, free from arbitrary, vexatious, and oppressive delay.
It is different, first, because "[i]n addition to the general concern that all accused persons be treated according to decent and fair procedures, there is a societal interest in providing a speedy trial which exists separate from, and at times in opposition to, the interests of the accused."
Second, the right is unique because "deprivation of the right may work to the accused's advantage."
Finally, the constitutional speedy trial right is unique because it "is a more vague
Before the U.S. Supreme Court case of Barker v. Wingo,
The Court instead developed a balancing test to determine whether a defendant's constitutional right to a speedy trial has been violated.
Subsequently, in Vermont v. Brillon,
We have held that, barring extraordinary circumstances, a defendant's constitutional right to a speedy trial is not denied when the defendant does not want a speedy trial.
As already discussed in depth, Hettle asked for an indefinite continuance. And that indefinite continuance did not, as Hettle hoped, magically disappear upon the State's amendment adding a misdemeanor charge to the information. Hettle gave the district court no notice of his intention to end the continuance by requesting a trial. To the contrary, Hettle waited silently until the eve of the scheduled trial to voice any concern over the delay. We find no error in the district court's denial of the motion for discharge under the constitutional right to a speedy trial.
Finally, Hettle argues that the district court erred in denying his motion for discharge under his Fifth Amendment right to due process. The Fifth Amendment has only a "limited role to play in protecting against oppressive delay" in the criminal context.
Regardless, the due process claimant's burden is a "heavy" one, requiring a showing of both substantial actual prejudice resulting from the delay and bad faith on the part of the government.
We affirm the decision of the district court. In light of Hettle's statutory waiver under § 29-1207(4)(b), it is not necessary to calculate the amount of time remaining to bring him to trial under § 29-1207.
AFFIRMED.
