State v. Timmerman10/5/2004
r she is held unless bail is set and posted. Neb. Rev. Stat. § 29-506 (Reissue 1995). Once the defendant is bound over to district court, the State files an information with the district court, setting forth the charge or charges against the defendant. Under the foregoing scenario, pursuant to § 29-1207, the statutory 6-month speedy trial period begins to run upon the filing of the information in district court which is subsequent to the preliminary hearing. [Neb. Rev. Stat.] § 29-1607 [(Reissue 1995)].
In State v. Hutton, 11 Neb. App. 286, 648 N.W.2d 322 (2002), this court considered an argument similar to the one raised by Timmerman. In Hutton, the defendant, who had been charged with felony shoplifting, alleged that the time that an earlier complaint charging her with misdemeanor shoplifting was pending in county court should be tacked on in calculating the 6-month speedy trial period. We rejected that argument, noting:
While the previous complaints in this action all alleged the same crime, theft by shoplifting, as that alleged in the information, it does not follow that the time during which the amended complaint was pending should be tacked onto the speedy trial period as argued by [the defendant]. The plain language of § 29-1207 makes it clear that the 6-month period begins to run upon the filing of the information in district court. The time when an underlying complaint is pending in county court before the defendant is bound over to district court is not counted.
State v. Hutton, 11 Neb. App. at 291, 648 N.W.2d at 327.
In sum, Nebraska case law and the plain language of § 29-1207 make it clear that the 6-month speedy trial period be-gins to run upon the filing of the information in district court. See State v. Hutton, supra. The time during which an underlying complaint is pending in county court before the defendant is bound over to district court is not counted. See, State v. Boslau, supra; State v. Hutton, supra.
The final trial date under § 29-1207 is determined by ex-cluding the date the information was filed, counting forward 6 months, backing up 1 day, and then adding the excludable time periods to that date. See State v. Sumstine, 239 Neb. 707, 478 N.W.2d 240 (1991).
In the instant case, the information was filed in the Hall County District Court on April 4, 2003. Therefore, absent periods of exclusion, Timmerman's trial must have commenced by October 3. However, there are excludable time periods which must be considered in this case.
Timmerman filed a motion to suppress on August 27, 2003, which motion was not ruled on until September 17. Further, on August 7, 2003, Timmerman requested a continuance of a pretrial conference, which continuance was granted, and the matter was continued until September 11. The period of delay resulting from a continuance of a pretrial conference at a defendant's request is excludable from speedy trial calculations. See State v. Dailey, 10 Neb. App. 793, 639 N.W.2d 141 (2002) (delay of 6 days due to defendant's request for continuance of pretrial conference was excludable from statutory speedy trial period, even though purpose of defendant's request was to respond to motions filed by State). Thus, the time period from the day after the filing of the first pretrial motion to the date that the motion to suppress was denied (August 8 to September 17), consisting of 41 days, is excludable in the speedy trial calculations.
Furthermore, Timmerman filed his motion for discharge on October 1, 2003. Thus, the period of time from October 2 until October 16, when the court ruled on the motion, is also excluded from calculations. Thus, an additional 15 days is excludable. Additionally, the tim
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