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State v. Timmerman10/5/2004
On February 3, 2003, a complaint was filed in the Hall County Court charging Timmerman with one felony count of driving un-der the influence of alcohol and three misdemeanor counts: driving during suspension, refusal to submit to a chemical test, and refusal to submit to a preliminary breath test. On April 4, an in-formation was filed in the Hall County District Court charging Timmerman with these same offenses.
A pretrial conference was scheduled for August 7, 2003. On that date, Timmerman moved to continue the pretrial conference. The district court granted the motion and continued the pretrial conference to September 11.
On August 27, 2003, Timmerman filed a motion to suppress, which was denied on September 17. On October 1, Timmerman filed a motion for discharge on statutory speedy trial grounds, which was denied by the court on October 16. Timmerman has timely appealed to this court.
ASSIGNMENT OF ERROR
Timmerman's sole assigned error is that the district court erred in denying his motion for discharge.
STANDARD OF REVIEW
[1,2] 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. Baker, 264 Neb. 867, 652 N.W.2d 612 (2002). To the extent an appeal calls for statutory interpretation or presents questions of law, an appellate court must reach an independent conclusion irrespective of the determination made by the court below. Id.
ANALYSIS
Statutory Right to Speedy Trial
On appeal, Timmerman contends that the district court erred in denying his motion for discharge based upon the alleged violation of his statutory right to a speedy trial. He claims that the time the complaint was pending in county court should be tacked on for purposes of the speedy trial calculation. We note that Timmerman has not alleged that his constitutional right to a speedy trial has been violated, and thus, we will not address that issue.
Neb. Rev. Stat. § 29-1207 (Reissue 1995) provides that every person charged for any offense shall be brought to trial within 6 months of the date the information is filed. Section 29-1207 also provides for certain periods of time that are excludable in computing the 6-month limitation, such as the time from filing until final disposition of pretrial motions of the defendant, including motions to suppress evidence, and the period of delay resulting from a continuance granted at the request or with the consent of the defendant or his counsel. Neb. Rev. Stat. § 29-1208 (Reissue 1995) provides: "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 and for any other offense required by law to be joined with that offense."
The Nebraska Supreme Court in State v. Boslau, 258 Neb. 39, 43, 601 N.W.2d 769, 772-73 (1999), although analyzing the speedy trial act in relation to direct informations filed initially in district court, set forth the procedure and application of the speedy trial act in cases similar to the case at bar as follows:
Ordinarily, when an individual is charged with the commission of a felony . . . a complaint is filed in county court. See, generally, Neb. Rev. Stat. § 29-110 (Reissue 1995). Thereafter, a preliminary hearing is held to determine if probable cause exists to charge the defendant with the commission of the crime or crimes as alleged in the complaint. Neb. Rev. Stat. § 29-504 (Reissue 1995). If probable cause is found, the defendant is bound over to the district court, where he o
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