NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
MOORE, Judge.
INTRODUCTION
Donald J. Marsh appeals from an order of the district court for Sarpy County, asserting error in the denial of his motion for discharge on the basis of his statutory right to a speedy trial under Neb. Rev. Stat. § 29-1208 (Reissue 2008). We find that the district court correctly excluded the entire time between Marsh's filing of his motion to suppress and the district court's ruling thereon, despite a continuance of the hearing on the suppression motion at the State's request. Accordingly, we affirm the district court's decision to deny Marsh's motion for discharge; however, we modify the calculation of the number of days remaining on the speedy trial clock.
BACKGROUND
On April 1, 2008, Marsh was charged by information in Sarpy County District Court with first degree sexual assault on a child, second offense, and sexual assault of a child, second offense. Following a pretrial conference, the trial was set for June 11.
On May 21, 2008, Marsh filed a motion to view certain video evidence, and the district court entered an order granting the motion on the same day. On May 27, the State filed a motion to continue the trial due to witness unavailability to which defense counsel had no objection. On May 28, the district court granted the motion and continued the trial until August 13.
On July 28, 2008, Marsh filed a motion to suppress, which motion was set for hearing on September 19. On August 5, the State filed a motion to continue the hearing on the motion to suppress due to witness unavailability. The record does not contain any indication that a hearing was held on this motion to continue. A journal entry dated August 11, 2008, shows that the district court granted the State's motion to continue and reset the hearing on Marsh's motion to suppress for October 22. On December 10, the district court entered an order denying Marsh's motion to suppress. Thereafter, the matter was set for a jury trial on March 12, 2009.
On February 24, 2009, Marsh filed a motion for discharge. On April 28, the district court held an evidentiary hearing on the motion. On May 21, the court entered an order denying the motion, but the district court did not make specific factual findings to support its ruling. Marsh appealed to this court, and on December 8, we granted the State's request to remand the cause to the district court for specific findings for each period of delay excludable under Neb. Rev. Stat. § 29-1207 (Reissue 2008) as required by State v. Williams, 277 Neb. 133, 761 N.W.2d 514 (2009). On December 22, the district court entered its findings of fact. The district court found that the following were excludable periods of time:
1. May 28, 2008, until July 28, 2008, based upon the agreement of the parties to a continuance;
2. July 28, 2008, until December 8, 2008, pursuant to § 29-1207(4)(a) on [Marsh's] pre-trial motion to suppress; and,
3. February 24, 2009, until May 21, 2009, to dispose of Marsh's motion for discharge pursuant to § 29-1207(4)(a).
The district court found that the excludable time was 194 days, and the State would have had until April 22, 2009, to bring Marsh to trial. Marsh again filed a timely appeal.
ASSIGNMENT OF ERROR
Marsh asserts that the district court erred in denying the motion to discharge because the State failed to prove, by a preponderance of the evidence, that an excludable period of time existed under § 29-1207.
STANDARD OF REVIEW
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. Williams, 277 Neb. 133, 761 N.W.2d 514 (2009).
ANALYSIS
Marsh argues that the district court incorrectly calculated the excludable time related to his suppression motion because the State requested a continuance during the pendency of the motion to suppress and the time used to dispose of the State's motion for continuance of the suppression motion should not be excludable time. Specifically, Marsh asserts that the time between the granting of the State's motion to continue the suppression hearing and the rescheduled suppression hearing should not be excluded from the speedy trial clock. The State argues that the district court was correct in excluding the entire time between the filing of Marsh's motion to suppress and the order ruling thereon, regardless of the State's intervening motion to continue.
Under § 29-1208, 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 his or her absolute discharge. State v. Williams, 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. Williams, supra. The rules concerning the effect of a defendant's motions are well settled. The plain terms of § 29-1207(4)(a) exclude all time between the filing of a defendant's pretrial motions and their disposition, regardless of the promptness or reasonableness of the delay. State v. Williams, supra. The excludable period commences on the day immediately after the filing of a defendant's pretrial motion. Id. Final disposition under § 29-1207(4)(a) occurs on the date the motion is granted or denied. State v. Williams, supra. Pursuant to § 29-1207(4)(a), it is presumed that a delay in hearing defense pretrial motions is attributable to the defendant unless the record affirmatively indicates otherwise. State v. Williams, supra.
Our research has not revealed any Nebraska cases where a period of delay resulting from a continuance requested by the State of a hearing on a defendant's pretrial motion has not been excluded from the statutory speedy trial clock. Marsh cites to the case of State v. Shipler, 17 Neb.App. 66, 758 N.W.2d 41 (2008), as support for his argument that the State was required to prove that the delay resulting from the continuance fell under § 29-1207(4)(c)(i), which applies to continuances sought at the request of the prosecuting attorney due to witness unavailability. However, Shipler involved the State's motion to continue the trial, not a motion to continue a hearing on a defense motion.
In State v. Feldhacker, 267 Neb. 145, 672 N.W.2d 627 (2004), the State sought a continuance of the hearing on the defendant's Jackson v. Denno suppression motion, pursuant to Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L. Ed. 2d 908 (1964). In rejecting the defendant's argument that this continuance should be attributable to the State and therefore not included in the excludable time under the defendant's motion, the Supreme Court first noted that the defendant did not object and therefore consented to the continuance. The court then stated:
In addition, § 29-1207(4)(a) does not include a requirement that the State show "due diligence" or "good cause." [Citation omitted.] We have specifically declined to "rewrite the provisions of § 29-1207(4)(a) to include and require a reasonable time or good cause for delay in disposition of the pretrial matters described or characterized in § 29-1207(4)(a) as a part of the Nebraska speedy trial act." State v. Lafler, 225 Neb. 362, 373, 405 N.W.2d 576, 583-84 (1987), abrogated on other grounds, State v. Oldfield, 236 Neb. 433, 461 N.W.2d 554 (1990). In Lafler, we cited and followed the reasoning of the U.S. Supreme Court in Henderson v. United States, 476 U.S. 32, 106 S.Ct. 1871, 90 L. Ed. 2d 299 (1986). Henderson construed a provision of the federal Speedy Trial Act of 1974 which was substantially similar to § 29-1207(4)(a). Noting that courts "often find it impossible to resolve motions on which hearings have been held until the parties have submitted posthearing briefs or additional factual materials," the Court in Henderson specifically held that the federal statutory provision relevant to pretrial motions filed by a criminal defendant excluded the "time after a hearing has been held where a district court awaits additional filings from the parties that are needed for proper disposition of the motion." 476 U.S. at 331.
State v. Feldhacker, 267 Neb. at 153, 672 N.W.2d at 633-34.
Under the foregoing discussion, there would have been no difference in the present case had the court held the record open at the suppression hearing for the receipt of additional evidence instead of granting a continuance of the suppression hearing due to witness unavailability. The result is the same; namely, that the defendant's motion is under submission until the court makes its ruling thereon and the entire time is excluded from the speedy trial clock.
Similarly, in State v. Hayes, 10 Neb.App. 833, 639 N.W.2d 418 (2002), this court found that the additional time resulting from the State's continuance of the hearing on the defendant's pending motion to suppress was excluded under § 29-1207(4)(a). We held that the trial court was not required to do a good cause analysis with respect to the continuance requested by the State because it occurred within an already running excludable period occasioned by the defendant's motion to suppress.
Based upon the plain language of § 29-1207(4)(a) and the foregoing authority, the district court was correct in excluding the entire time between Marsh's filing of his motion to suppress and the court's ruling thereon. We summarize the excludable periods of time as follows: (1) May 28, 2008 (date order entered granting State's first motion to continue to which Marsh did not object) until August 13 (the new trial date), or 78 days, and (2) July 29, 2008 (day after Marsh's motion to suppress filed) until December 10 (order entered denying motion to suppress, excluding the overlapping days between July 29 and August 13 above), or 119 days.
The information was filed on April 1, 2008. In the absence of any excludable periods, October 1, 2008, would have been the last day Marsh could be tried. Adding the 197 days of excludable time, the last date on which the State could bring Marsh to trial was extended to April 16, 2009. At the time Marsh filed his motion to discharge on February 24, 2009, there was a total of 52 days still remaining to bring Marsh to trial. The district court did not err in overruling Marsh's motion to discharge. Because our math differs slightly from that of the district court, we modify the district court's order to reflect that the State still has 52 days to bring Marsh to trial following remand of this matter. See State v. Williams, 277 Neb. 133, 761 N.W.2d 514 (2009).
CONCLUSION
The district court did not err in denying Marsh's motion for discharge; however, we find that the State has 52 days remaining to bring Marsh to trial following remand of this matter. Accordingly, we affirm the judgment of the district court as modified to reflect the correct number of days remaining on the speedy trial clock.
AFFIRMED AS MODIFIED.
