MEMORANDUM OPINION AND JUDGMENT ON APPEAL
MOORE, Judge.
INTRODUCTION
Augustine Rubio appeals from the order of the district court for Douglas County that denied his motion for absolute discharge. For the reasons that follow, we affirm. Pursuant to this court's authority under Neb. Ct. R. App. P. § 2-111(B)(1) (rev. 2008), this case was ordered submitted without oral argument.
BACKGROUND
On February 20, 2009, the State filed an information in the district court, charging Rubio with child abuse resulting in death, in violation of Neb. Rev. Stat. § 28-707(6) (Reissue 2008), a Class IB felony.
On February 24, 2009, Rubio filed a motion for mutual and reciprocal discovery, which was ordered by the court on April 8. The parties have stipulated that these 43 days are excludable from the speedy trial calculation.
On May 29, 2009, Rubio filed a motion to take depositions. The district court signed the order on June 19, but the order granting the motion was not entered until June 23. The parties have stipulated that the period attributable to this motion is excludable. Although the parties agreed that only 21 days (the period between May 29 and June 19) should be excluded in their speedy trial calculation, the correct excludable period attributable to this motion is the 25 days between May 29 and June 23.
At a hearing on July 8, 2009, Rubio waived his speedy trial rights until November 16. The court accepted Rubio's waiver and set trial for November 16. The parties agree that there are 131 excludable days between July 8 and November 16.
The State subpoenaed witnesses, including Dr. M. Palmer for November 16, 2009.
On November 12, 2009, Rubio made an oral motion to continue, which was sustained by the district court with Rubio's consent. Trial was set for December 7. The parties agree that an additional 21 days between November 16 and December 7 are excludable from the speedy trial clock (calculated by subtracting the 4 overlapping days between November 12 and 16 that were already included in the previous excludable period).
On November 18, 2009, the State subpoenaed Palmer for December 9.
At a hearing on December 1, 2009, the State sought a continuance. The State had a copy of its written motion at the hearing but informed the court that "the original hasn't made its way into the file." The county attorney stated that the State was requesting the continuance because two of its material witnesses, the victim's mother and grandmother, had been involved in a car accident that resulted in serious injuries and required the mother to be on bedrest for approximately 10 weeks. Rubio's counsel objected "for the record," stating that he had no basis to disagree with or confirm the county attorney's statements at the hearing. The district court inquired as to whether Rubio's counsel wanted the facts recited by the State to be given under oath. Rubio's counsel replied, "It wouldn't make any difference to me whether they were under oath or not. I'm simply going to object for the record, Your Honor." Based upon the written motion for continuance and the county attorney's statements, the court found reasonable grounds for a continuance and reasonable grounds to believe that the evidence would be available at a later date. From the bench, the court granted the motion pursuant to Neb. Rev. Stat. § 29-1207(4)(c)(i) (Reissue 2008). The record on appeal contains a copy of the State's original written motion for continuance, filed on December 2, and an amended motion, filed on December 4—the only difference between the two motions being that the case number was typed instead of handwritten on the amended motion. The court entered an order on December 3, granting the State's motion and continuing trial to March 15, 2010.
On February 8, 2010, the State subpoenaed Palmer and other witnesses for March 15. Palmer was served on February 8, and a copy was filed with the court on February 23.
On February 22, 2010, the State filed a motion for leave to take Palmer's deposition. A hearing was held on February 25. The State informed the court that Palmer was an ophthalmologist who had examined the victim and would testify that certain injuries were not accidental and were consistent with child abuse. The State represented to the district court that Palmer had informed it that she was scheduled to have neck surgery and that she would be on medical leave for a month starting March 10. The State offered to go to trial a week earlier than the scheduled date of March 15, to proceed with a videotaped deposition of Palmer in lieu of her live testimony, or to seek a continuance in order to have Palmer testify at a later date. The court stated:
I don't see that you have given me any evidence that she's unavailable as a witness, which would make taking her deposition seem like a waste of time to me. Under the statute, you can only use deposition testimony for impeachment of the person testifying at trial, unless you can show they are unavailable as a witness.
On February 26, 2010, the State filed a motion for continuance or, in the alternative, a motion to use a videotaped deposition of Palmer in lieu of trial testimony. A hearing was held on March 1, at which hearing the State offered affidavits from Palmer and a paralegal for the State, as additional evidence of Palmer's unavailability, which were received by the district court. The State argued that the affidavits showed good cause to continue the trial pursuant to § 29-1207(4)(f). The court sustained Rubio's objection to using a videotaped deposition of Palmer in lieu of trial testimony. Rubio also objected to the motion to continue, arguing that the record did not show that the State subpoenaed Palmer and therefore had not shown good cause for a continuance. The State again argued that Palmer was a critical witness because she was the only ophthalmologist who examined the victim. The court granted the State's second motion to continue, and trial was continued to April 12.
On April 8, 2010, Rubio filed a motion to discharge, which was heard by the district court on April 8. The court entered an order on May 14, denying Rubio's motion. It accepted the parties' stipulated excludable periods for a total of 216 days (counting only 21 days rather than the correct 25 days for Rubio's motion to take depositions), making the last day to bring Rubio to trial, by the court's calculation, March 24, 2010, absent any excludable periods. It noted that it granted both of the State's continuances based on the unavailability of critical witnesses. The court stated:
Assuming, arguendo, that granting the [State's] first motion without a written motion or supporting affidavits was in error, the [State's] second motion for continuance was in writing, supported by an affidavit, and showed good cause for the continuance, and was made prior to the expiration of [Rubio's] speedy trial clock.
The court excluded the time between March 1 and April 8, 2010, for the State's second continuance and, thus, found that Rubio's right to a speedy trial had not been infringed. Rubio subsequently perfected his appeal to this court.
ASSIGNMENT OF ERROR
Rubio asserts that the district court erred in denying his motion to discharge.
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. Tamayo, 280 Neb. 836, ___ N.W.2d ___ (2010). Statutory interpretation presents a question of law, for which an appellate court has an obligation to reach an independent conclusion irrespective of the determination made by the court below. Id.
ANALYSIS
Rubio asserts that the district court erred in denying his motion to discharge. Under Neb. Rev. Stat. § 29-1208 (Reissue 2008), 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 absolute discharge from the offense charged. State v. Tamayo, supra. Section 29-1207(1) provides that "[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 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. Tamayo, supra. Although the speedy trial statutes were amended operative July 15, 2010, the amendment does not affect our analysis, and we have referred in this opinion to the version in effect at the time of the proceedings in this case. 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. Wells, 277 Neb. 476, 763 N.W.2d 380 (2009).
The information was filed against Rubio on February 20, 2009, so without any excludable periods, the last day Rubio could have been brought to trial was August 20.
The plain terms of § 29-1207(4)(a) exclude all time between the time of the filing of a defendant's pretrial motions and their final disposition, regardless of the promptness or reasonableness of the delay. State v. Williams, 277 Neb. 133, 761 N.W.2d 514 (2009). The excludable period commences on the day immediately after the filing of a defendant's pretrial motion. State v. Williams, supra. Final disposition under § 29-1207(4)(a) occurs on the date the motion is granted or denied. Id. Thus, there are 43 days excludable due to Rubio's motion for discovery (period between February 24 and April 8, 2009) and, as noted above in the background section, 25 days excludable due to Rubio's motion to take depositions (period between May 29 and June 23).
For speedy trial purposes, the calculation for a continuance begins the day after the continuance is granted and includes the day on which the continuance ends. State v. Williams, supra. See § 29-1207(4)(b). Thus, there are 131 days excludable due to Rubio's limited speedy trial waiver (period between July 8 and November 16, 2009) and 25 days excludable due to his oral motion for continuance (period between November 12 and December 7). Because of the four overlapping days, the total excludable time for these two periods is 152 days. The State agrees with Rubio that the above time periods were excludable.
Accordingly, without any additional excludable periods, there are 220 days excludable from the speedy trial clock, and the last day the State could have brought Rubio to trial was Monday, March 30, 2010 (as March 29 fell on a Sunday). Thus, the question of whether the district court erred in denying Rubio's motion depends on whether the court properly granted at least one of the State's continuances.
State's First Continuance.
Rubio argues that the State's first motion to continue did not conform to Neb. Rev. Stat. § 25-1148 (Reissue 2008), which states that applications for continuance shall be in writing and supported by affidavit. Because he objected to the continuance and to the State's showing, he argues that his case is distinguishable from State v. Shipler, 17 Neb.App. 66, 758 N.W.2d 41 (2008), and State v. Roundtree, 11 Neb.App. 628, 658 N.W.2d 308 (2003), and that the State's continuance should have been denied. In Roundtree, this court considered whether unsworn statements made by the prosecutor to the court in the presence of the defendant and his attorney was a satisfactory method to seek a continuance and, if so, whether the facts stated by the prosecutor and other information properly in the record complied with the requirements for a continuance found in § 29-1207(4)(c)(i) (Reissue 1995). We observed that oral or other informal statements are obviously a poor procedure when speedy trial rights are involved and began with the proposition that mere oral statements of counsel should not be received as evidence, although objection to their reception may be waived. State v. Roundtree, supra. After reviewing cases from other jurisdictions, we concluded that it is not error for a trial court to grant a continuance when the factual basis for granting the motion is wholly or largely dependent upon the oral statements of the prosecutor and the defense does not object to the procedure. Id. We further concluded that by the defense's silence, it had waived any requirement that the motion or showing be in writing or under oath. Id. We found that it was not error for a trial court to grant a prosecutor an oral motion for a continuance under § 29-1207(4)(c)(i) even though the only showing is by the oral statements of the prosecutor when the defendant and his or her counsel are present and do not object on the record to the oral motion and showing, and where the facts as stated by the prosecutor would be sufficient if they had been contained in an affidavit or otherwise made under oath. Id.
Contrary to Rubio's assertions, the State's first motion for continuance in this case was in writing, and it had a copy of the written motion at the hearing. While the State's first motion for continuance was not supported by affidavit, the absence of a supporting affidavit is merely a factor to be considered in determining whether a continuance should be granted. See State v. Roundtree, supra. Rubio claims that he objected to both the continuance generally and to the State's showing. However, Rubio's attorney simply objected "for the record" and declined to have the facts recited by the prosecutor given under oath. We conclude that by failing to object specifically to the showing by the State and by declining to have the prosecutor's recitation given under oath, Rubio waived any requirement that the motion or showing be made in writing or under oath.
Thus, we proceed to consider whether the facts given by the prosecutor and the other information in the record properly before the court complied with § 29-1207(4)(c)(i) (Reissue 2008). Under that section, the State must show the unavailability of evidence material to its case, the exercise of due diligence to obtain such evidence, and reasonable grounds to believe that the evidence will be available at a later date. In this case, the State showed that two of its material witnesses, the victim's mother and grandmother, were in a serious car accident after the trial had previously been continued on Rubio's motion. The mother was going to be on bedrest for 10 weeks. Clearly, the State complied with the requirements of § 29-1207(4)(c)(i), which is exactly what the district court determined in granting the State's first motion for continuance. We conclude that the period of delay resulting from the first continuance requested by the State should have been excluded.
The district court granted the State's first motion for continuance at the hearing on December 1, 2009, and trial was continued to March 15, 2010. Thus, there are 104 days excludable from the speedy trial clock due to the State's first continuance (period between December 1 and March 15). In its order denying Rubio's motion for discharge, the court assumed, arguendo, that the continuance should not have been granted. A proper result will not be reversed merely because it was reached for the wrong reason. In re Trust Created by Cease, 267 Neb. 753, 677 N.W.2d 495 (2004).
State's Second Continuance.
Rubio argues that the State's second continuance was not properly granted because the State failed to show that Palmer was unavailable and because it failed to exercise due diligence as required under § 29-1207(4)(c)(i). The State agrees with Rubio that this period should be analyzed under § 29-1207(4)(c)(i).
At the March 1, 2010, hearing, the district court received affidavits from Palmer and a paralegal in the county attorney's office.
In her affidavit, dated March 1, 2010, Palmer stated that she had examined the victim and would provide her opinion as to the extent and cause of injuries sustained. Palmer stated that she was notified by the State of the upcoming trial date of March 15 and that she was unable to testify during that week. Palmer stated that she was scheduled to have a surgical fusion on her neck on March 11, would be required to be on bedrest for 30 days following her surgery, and would be prohibited from driving or being in a car for the first 2 weeks following the surgery. Palmer also stated that she would be under the influence of pain medications, which could affect her ability to testify. Palmer stated that she was unable to reschedule the surgery because she was in moderate to severe pain and had to postpone surgery since December 2009 in order to arrange coverage of patient clinics and resident supervision.
The paralegal stated in her affidavit that on November 18, 2009, she had the Douglas County clerk's office issue a subpoena for Palmer for December 9, 2009. The paralegal made telephone contact with Palmer concerning her availability for testimony that week, and Palmer informed the paralegal that she was waiting for word from her personal physician about possible neck surgery that week. The paralegal asked Palmer to call as soon as she had the information about her surgery. The paralegal stated that the prosecutor contacted her on December 1 to inform her of the continuance of the trial date to March 15, 2010. The paralegal called Palmer at her office and left a message informing her of the new trial date. The paralegal stated that Palmer was served a subpoena for the trial date of March 15, that she called Palmer on February 8 to schedule a day and time for her to testify during the week of trial, and that Palmer informed her that she would be having neck surgery on March 11 and would be out of the office for a month.
We conclude that the evidence establishes the required elements under § 29-1207(4)(c)(i). The district court did not abuse its discretion in granting the State's second motion for continuance. The court granted the State's second motion for continuance at the hearing on March 1, 2010, and trial was continued to April 12. Thus, there are 42 days excludable from the speedy trial clock due to the State's second continuance (period between March 1 and April 12). However, because there are overlapping days between the State's first and second continuance (March 1 through 15), only 28 additional excludable days are added to the speedy trial clock due to the State's second continuance.
Resolution.
There are a total of 352 excludable days due to all of the stipulated time periods and to both of the State's continuances. Adding 352 days to August 20, 2009, the last day to bring Rubio to trial was August 9, 2010, as August 7 was a Saturday.
Rubio filed his motion to discharge on April 8, 2010, leaving the State 123 days to bring Rubio to trial. The filing of his motion to discharge tolled the speedy trial time until it was resolved by the district court and the time during which Rubio's motion to discharge has been pending on appeal before this court is also excluded. Rubio's statutory speedy trial right was not violated, and the court properly denied his motion.
CONCLUSION
The district court did not err in denying Rubio's motion for discharge.
AFFIRMED.
