State v. Kinstler

299 N.W.2d 182, 207 Neb. 386, 1980 Neb. LEXIS 986
CourtNebraska Supreme Court
DecidedDecember 1, 1980
Docket43233
StatusPublished
Cited by93 cases

This text of 299 N.W.2d 182 (State v. Kinstler) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Kinstler, 299 N.W.2d 182, 207 Neb. 386, 1980 Neb. LEXIS 986 (Neb. 1980).

Opinions

Krivosha, C.J.

The appellant, Kenneth Kinstler, appeals from a conviction following a bench trial on November 28, 1979, he was sentenced to a term of 2 years’ probation, of police reports in lieu of testimony, the appellant was found guilty of kidnapping. On December 27, 1979, he was sentenced to a term of 2 years’ probation. Appellant maintains that the trial court erred in overruling appellant’s earlier motion for discharge based upon the State’s failure to grant him a trial [387]*387within 6 months, as required by Neb. Rev. Stat. §29-1207 (Reissue 1979). Our examination of the record and the law applicable thereto leads to the inescapable conclusion that the appellant’s contention is correct and, accordingly, we must reverse the action of the trial court and order the appellant discharged.

All of the facts in this case are without dispute. They point up, however, what it was that concerned this court when we decided the case of State v. Shaw, 202 Neb. 766, 277 N.W.2d 106 (1979).

The undisputed facts disclose that on March 7, 1973, a female student at the University of Nebraska at Omaha, having finished her class at approximately 6:40 p.m. of that day, was walking to her car in the student parking lot behind the administration building. She opened the car door, got in, and when attempting to close the door, was prevented from doing so by the appellant who told her that he had just committed a robbery and needed to meet a friend in Waterloo, Nebraska. He forced himself into the car by displaying a small gun and threatened her that if she caused a fuss she might get hurt. He forced her to drive to Waterloo where she was told to pull off the road beside the Elkhorn River where they waited for approximately an hour. At approximately .8:30 p.m., appellant tied her hands behind her back with a nylon stocking and tried to tie another around her mouth to gag her. At this time, appellant stated he needed a drink and took the student to a nearby bar where he threatened to do something to hurt her if she left the car when he went inside. When he left, the woman left the car and ran to a nearby home where police were called. Appellant was thereafter arrested and, after being advised of his rights and waiving them, admitted to the police the commission of the crime.

Appellant was charged on March 23, 1973, with kidnapping and the use of a firearm to which the ap[388]*388pellant entered formal charges of not guilty. Following entry of his not guilty pleas, his then counsel determined that appellant may be a treatable sexual sociopath pursuant to then existing Neb. Rev. Stat. §29-2901 (Reissue 1975). On August 29, 1973, after examination, appellant was determined to be a treatable sexual sociopath; the criminal proceedings were indefinitely postponed; and the appellant was committed to the Lincoln Regional Center where he was on March 27,1979, the date upon which this court filed its opinion in State v. Shaw, supra. In the Shaw case, we held that the provisions of the Nebraska sexual sociopath legislation permitting the imposition of a criminal sentence to be deferred indefinitely, and in some cases, for many years, until a defendant’s ultimate release from commitment, denied such defendant a final sentence and judgment from which he might appeal and thereby violated principles of due process and equal protection. We therefore held in State v. Shaw, supra at 771, 277 N.W.2d at 110, that “pursuant to section 29-2902, R. R. S. 1943, criminal proceedings in a case in which there is probable cause to believe that defendant is a sexual sociopath may be adjourned and the sentence suspended until proceedings pursuant to the sexual sociopath law have been completed. Upon completion of those proceedings, at the earliest possible time thereafter, defendant shall be returned to the District Court wherein he was convicted. At that time an appropriate sentence on the criminal charge shall be imposed.” We concluded the opinion in State v. Shaw, supra at 772, 277 N.W.2d at 111, by ordering that, “All persons presently in custody as sexual sociopaths, who have not been sentenced for the sexual assaults which led to their being declared a sexual sociopath, should be returned to the district in which they were convicted for the purpose of sentencing on the criminal charge.”

On April 30, 1979, Jack M. Cleavenger, then acting director of the Nebraska Department of Public [389]*389Institutions, wrote a letter to Judge John C. Burke, one of the district judges in and for the 4th Judicial District, and the judge who had presided over earlier proceedings in this case, alerting the court to the Shaw decision’s possible application to the instant case. On May 14, 1979, Judge Burke responded with a letter to Mr. Cleavenger advising him that the Douglas County Attorney had been apprised of the matter and that action would occur within 2 weeks to return appellant to court to conform to the Shaw decision.

In May of 1979, the Nebraska Legislature, then being in session, repealed the then existing sexual sociopath statutes and enacted in their stead Neb. Rev. Stat. §§29-2911 to 2921 (Reissue 1979), relating to mentally disordered sex offenders. The act was passed with the emergency clause and became effective upon the Governor’s signature on May 23, 1979. The newly enacted statutes acknowledged our statements in Shaw and specifically provided that, “All persons now committed under Chapter 29, article 29, as either a sexual psychopath or a sexual sociopath, shall forthwith be returned to the district court which committed them for review and disposition consistent with the terms of sections 29-2911 to 29-2921.” §29-2921.

Notwithstanding all of those facts, it was not until October 25, 1979, that an order was entered directing the Douglas County sheriff to return the appellant to Omaha for an arraignment which was held on October 30, 1979. Appellant was confined at the Lincoln Regional Center during all of this time. On November 27, 1979, appellant filed a motion for discharge for lack of speedy trial, which was denied by the trial court immediately prior to appellant’s trial and conviction of kidnapping which occurred on November 28, 1979.

Our disposition of this matter is controlled entirely by the mandate of the Nebraska Legislature, found in Chapter 29, article 12 of the Revised Statutes of Nebraska. These sections simply prescribe the details [390]*390which are, in essence, mandated by the sixth amendment to the Constitution of the United States which requires, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed . . . ,” as well as our own Nebraska Constitution, art. I, § 11. Section 29-1207 provides, in part, as follows:

“(1) Every 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.
“(2) Such six-month period shall commence to run from the date the indictment is returned or the information filed. . .

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State v. Kinstler
299 N.W.2d 182 (Nebraska Supreme Court, 1980)

Cite This Page — Counsel Stack

Bluebook (online)
299 N.W.2d 182, 207 Neb. 386, 1980 Neb. LEXIS 986, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-kinstler-neb-1980.