State v. Fioramonti

22 Neb.App. 52

847 N.W.2d 95

State of Nebraska, appellee,

v.Joseph J. Fioramonti, appellant.

No. A–13–244

Court of Appeals of Nebraska.

Filed June 3, 2014

Appeal from the District Court for Cheyenne County: Derek C. Weimer, Judge. Affirmed.

Stacy C. Nossaman–Petitt, of Nossaman Petitt Law Firm, P.C., Scottsbluff, for appellant.

Jon Bruning, Attorney General, and Kimberly A. Klein for appellee.

Inbody, Chief Judge, and Pirtle and Riedmann, Judges.

Syllabus by the Court

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. Judgments: Appeal and Error. To the extent issues of law are presented, an appellate court has an obligation to reach independent conclusions irrespective of the determinations made by the court below.

3. Speedy Trial: Indictments and Informations: Time.Neb.Rev.Stat. § 29–1207(1) (Cum.Supp.2012) requires that every person indicted or informed against for any offense shall be brought to trial within 6 months, unless the 6 months are extended by any period to be excluded in computing the time for trial.

4. Speedy Trial. Under Neb.Rev.Stat. § 29–1208 (Cum.Supp.2012), 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 his or her absolute discharge.

5. Speedy Trial. To calculate the deadline for trial under the speedy trial statutes, a court must exclude the day the State filed the information, count forward 6 months, back up 1 day, and then add any time excluded under Neb.Rev.Stat. § 29–1207(4) (Cum.Supp.2012).

6. Speedy Trial: Motions for Continuance. The period of delay resulting from a continuance granted at the request or with the consent of the defendant or his counsel shall be excluded from the calculation of the time for trial.

7. Speedy Trial: Words and Phrases. The phrase “period of delay” in Neb.Rev.Stat. § 29–1207(4) (Cum.Supp.2012) refers to a specified period of time in which trial did not commence.

8. Speedy Trial: Proof. Under Nebraska's speedy trial act, it is unnecessary to show factually that delay actually prevented commencement of trial, that is, a demonstration of a cause-and-effect relationship between a condemned delay and failure to commence a defendant's trial within 6 months as prescribed by Neb.Rev.Stat. § 29–1207(2) (Cum.Supp.2012).

9. Appeal and Error. An appellate court may, at its discretion, discuss issues unnecessary to the disposition of an appeal where those issues are likely to recur during further proceedings.

10. Speedy Trial: Waiver. A defendant waives his or her statutory right to a speedy trial when the period of delay resulting from a continuance granted at the request of the defendant or his or her counsel extends the trial date beyond the statutory 6–month period.

11. Speedy Trial: Waiver: Appeal and Error. A defendant's motion to discharge based on statutory speedy trial grounds will be deemed to be a waiver of that right under Neb.Rev.Stat. § 29–1207(4)(b) (Cum.Supp.2012) where (1) the filing of such motion results in the continuance of a timely trial to a date outside the statutory 6–month period, as calculated on the date the motion to discharge was filed, (2) discharge is denied, and (3) that denial is affirmed on appeal.

12. Constitutional Law: Speedy Trial: Statutes. The constitutional right to a speedy trial and the statutory right to a speedy trial are expressly distinct from each other.

13. Appeal and Error. In order to be considered by an appellate court, an alleged error must be both specifically assigned and specifically argued in the brief of the party asserting the error.

Riedmann, Judge.

INTRODUCTION

Joseph J. Fioramonti appeals from the decision of the district court for Cheyenne County denying his motion to dismiss on speedy trial grounds. We find that the district court did not err in determining that his motion was premature. Accordingly, we affirm.

BACKGROUND

On September 10, 2012, Fioramonti was charged by information with possession of marijuana with intent to deliver, possession of marijuana weighing more than 1 pound, and possession of a controlled substance without tax stamps. On September 26, Fioramonti filed a motion for statutory discovery and a motion for return of personal property. A hearing on these motions was originally scheduled for October 12, but the district court granted a continuance to October 16 on the State's motion. Although the hearing is not contained in the record, the district court's journal entry indicates that Fioramonti had no objection to the State's request for continuance. On October 16, the district court ruled on Fioramonti's motion for statutory discovery and motion for return of personal property.

The matter was set for trial to begin on January 28, 2013. On December 21, 2012, the State filed a motion to continue the trial from January 28 to January 31, 2013, due to the unavailability of one of the State's witnesses. The State did not identify the unavailable witness or offer any evidence regarding the materiality of such witness. The following exchange took place during the hearing:

THE COURT: Okay, sounds good. Then let's talk about the motion to continue. Maybe the easiest way to start on that is to ask you if you have any objection to that?

[Defense counsel]: Your honor, we don't have an objection as long as the time runs against the State. We have no objection. I don't think this case has been pending that long so it shouldn't be an issue.

THE COURT: All right, I don't think so either.

The district court granted the State's motion for continuance without indicating whether the delay would run against the speedy trial clock. The matter was then rescheduled for trial to occur on March 20, 21, and 22.

During a pretrial conference on March 6, 2013, Fioramonti made an oral motion to use depositions due to unavailability of witnesses to appear at trial. Fioramonti filed a written motion the following day, and a hearing was held on the matter on March 8, at which time the court orally denied the motion.

On March 18, 2013, Fioramonti filed a motion to dismiss the case on speedy trial grounds, alleging that more than 6 months had elapsed since the date of filing of the information. The trial court entered an order denying the motion to dismiss on March 19. It found that the motion was premature because 23 days were excludable from the speedy trial calculation as follows: (1) 20 days during the pendency of Fioramonti's motion for statutory discovery, motion for return of personal property, and motion to withdraw, which motions were filed on September 26 and disposed of on October 16, and (2) 3 days during the pendency of Fioramonti's motion to use depositions, which motion was made orally on March 6 and denied on March 8. The district court did not address whether the delay resulting from the State's motion to continue the trial was excludable under the speedy trial statutes. It denied Fioramonti's motion to dismiss based on its finding that the speedy trial clock had not yet expired, but it did not make a finding regarding the number of days remaining on the speedy trial clock.

Fioramonti timely appeals.

ASSIGNMENTS OF ERROR

Fioramonti assigns that the district court erred in finding (1) that his discovery motion tolled the speedy trial clock and (2) that less than 6 months had elapsed since the information was filed. Because these assignments of error are related, we will address them together.

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. Mortensen, 19 Neb.App. 220, 809 N.W.2d 793 (2011) (Mortensen I ). However, to the extent issues of law are presented, an appellate court has an obligation to reach independent conclusions irrespective of the determinations made by the court below. Id.

ANALYSIS

Statutory Right to Speedy Trial.

Neb.Rev.Stat. § 29–1207(1) (Cum.Supp.2012) requires that every person indicted or informed against for any offense shall be brought to trial within 6 months, unless the 6 months are extended by any period to be excluded in computing the time for trial. Mortensen I. Under Neb.Rev.Stat. § 29–1208 (Cum.Supp.2012), 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 his or her absolute discharge. Mortensen I.

The rule in Nebraska is clear that to calculate the deadline for trial under the speedy trial statutes, a court must exclude the day the State filed the information, count forward 6 months, back up 1 day, and then add any time excluded under § 29–1207(4). State v. Mortensen, 287 Neb. 158, 841 N.W.2d 393 (2014) (Mortensen II ). Here, the information in this matter was filed on September 10, 2012. Thus, if there were no time periods excluded under § 29–1207(4), the last day on which the State could have brought Fioramonti to trial would have been March 10, 2013.

Under § 29–1207(4)(a), “the time from filing until final disposition” of the defendant's pretrial motions is excluded from the speedy trial calculation. The excludable period commences on the day immediately after the filing of a defend ant's pretrial motion, and final disposition occurs on the date the motion is granted or denied. See State v. Williams, 277 Neb. 133, 761 N.W.2d 514 (2009).

We agree with the district court's conclusion that 20 days are excludable from the speedy trial calculation due to Fioramonti's pretrial motions that were filed on September 26, 2012, and disposed of on October 16. Although the hearing on these motions was continued from October 11 to October 16 at the State's request, the record reflects that Fioramonti made no objection...