§ 29-1208 — Discharge from offense charged; when

Nebraska § 29-1208

• Jurisdiction: Nebraska
• Ch. 29: Criminal Procedure

Text

If a defendant is not brought
to trial before the running of the time for trial as provided for in section 29-1207 , as extended
by excluded periods, he or
she shall be entitled to his or
her absolute discharge from the offense charged and for any other
offense required by law to be joined with that offense.

Legislative History

Source: Laws 1971, LB 436, § 4; Laws 2010, LB712, § 16. Annotations: 1. Discharge 2. Miscellaneous 1. Discharge The power of the trial court to rule on a motion for discharge is not bound in any way by its prior interlocutory rulings. State v. Nelson, 313 Neb. 464, 984 N.W.2d 620 (2023). If a trial court fails to include the computation as required by State v. Williams, 277 Neb. 133, 761 N.W.2d 514 (2009), in its order on a motion for absolute discharge, the appeal will be summarily remanded to the trial court so that it can prepare the required computation. State v. Lintz, 298 Neb. 103, 902 N.W.2d 683 (2017). When ruling on a motion for absolute discharge pursuant to this section, the trial court shall make specific findings of each period of delay excludable under section 29-1207(4)(a) to (e), in addition to the findings under section 29-1207(4)(f). Such findings shall include the date and nature of the proceedings, circumstances, or rulings which initiated and concluded each excludable period; the number of days composing each excludable period; and the number of days remaining in which the defendant may be brought to trial after taking into consideration all excludable periods. State v. Lintz, 298 Neb. 103, 902 N.W.2d 683 (2017). Effective March 9, 2009, when ruling on a motion for absolute discharge pursuant to this section, the trial court shall make specific findings of each period of delay excludable under section 29-1207(4)(a) to (e), in addition to the findings under section 29-1207(4)(f). Such findings shall include the date and nature of the proceedings, circumstances, or rulings which initiated and concluded each excludable period; the number of days composing each excludable period; and the number of days remaining in which the defendant may be brought to trial after taking into consideration all excludable periods. State v. Williams, 277 Neb. 133, 761 N.W.2d 514 (2009). To obtain absolute discharge under this section, a defendant is not required to show prejudice sustained as the result of failure to bring the defendant to trial within 6 months in accordance with subsection (2) of section 29-1207. State v. Knudtson, 262 Neb. 917, 636 N.W.2d 379 (2001). To avoid a defendant's absolute discharge from an offense charged, as dictated by this section, the State must prove by a preponderance of the evidence the existence of a period of time which is authorized by subsection (4) of section 29-1207 to be excluded in computing the time for commencement of the defendant's trial. State v. French, 262 Neb. 664, 633 N.W.2d 908 (2001). Where a motion to discharge on speedy trial grounds is submitted to a trial court, that motion is inferentially denied where the trial court proceeds to trial without expressly ruling on the motion. State v. Ward, 257 Neb. 377, 597 N.W.2d 614 (1999). Resolution of a nonfrivolous motion to discharge pursuant to this section is a ruling affecting a substantial right made in a special proceeding and is therefore final and appealable. State v. Kinser, 256 Neb. 56, 588 N.W.2d 794 (1999). Per this section, a motion to discharge for lack of a speedy trial is a final, appealable order pursuant to section 25-1912(1). State v. Jacques, 253 Neb. 247, 570 N.W.2d 331 (1997). The primary burden to bring the accused person to trial within the time provided by law is upon the State, and failure to do so entitles defendant to an absolute discharge. State v. Richter, 240 Neb. 223, 481 N.W.2d 200 (1992). To avoid a defendant's absolute discharge from an offense charged, as dictated by this section, the State, by a preponderance of evidence, must prove existence of a time period to be excluded under section 29-1207(4). State v. Oldfield, 236 Neb. 433, 461 N.W.2d 554 (1990). To avoid a defendant's absolute discharge from an offense charged, the State, by a preponderance of evidence, must prove existence of a period of time which is authorized by section 29-1207(4) to be excluded in computing the time for commencement of the defendant's trial. State v. Lafler, 225 Neb. 362, 405 N.W.2d 576 (1987). The primary burden is upon the state to bring the accused person to trial within the time provided by law, and if he is not brought to trial within that time, he is entitled to an absolute discharge from the offense alleged in the absence of an express waiver or waiver as provided by statute. State v. Beck, 212 Neb. 701, 325 N.W.2d 148 (1982). Where trial not commenced within six months of filing the information, upon motion for discharge, burden is on the state to prove one or more of the excluded periods is applicable, or defendant is entitled to an absolute discharge. State v. Hankins, 200 Neb. 69, 262 N.W.2d 197 (1978). The primary burden is upon the state to bring accused to trial within time provided by law and if it does not he is entitled to discharge in absence of express waiver or waiver as provided by statute. State v. Brown, 189 Neb. 297, 202 N.W.2d 585 (1972); State v. Alvarez, 189 Neb. 281, 202 N.W.2d 604 (1972). If a defendant is not brought to trial before the running of the statutory speedy trial time period, as extended by excludable periods, he or she shall be entitled to his or her absolute discharge. State v. Henshaw, 19 Neb. App. 663, 812 N.W.2d 913 (2012); State v. Mortensen, 19 Neb. App. 220, 809 N.W.2d 793 (2011). The denial of a motion to discharge is an appealable order from which an appeal must be taken within 30 days. State v. Erb, 6 Neb. App. 672, 576 N.W.2d 839 (1998). 2. Miscellaneous The speedy trial statutes apply to prosecutions on complaint and of city ordinance violations. State v. Williams, 313 Neb. 981, 987 N.W.2d 613 (2023). A defendant's appeal of a final order denying a pretrial motion for absolute discharge on statutory speedy trial grounds did not result in appellate jurisdiction to review a nonfinal order that denied the motion on constitutional speedy trial grounds. State v. Abernathy, 310 Neb. 880, 969 N.W.2d 871 (2022). Failure of defendant to move for discharge prior to trial or entry of a plea of guilty or nolo contendere is a waiver of right to speedy trial. State v. Hert, 192 Neb. 751, 224 N.W.2d 188 (1974). Absolute preference to trial of criminal cases is not required. State v. Watkins, 190 Neb. 450, 209 N.W.2d 184 (1973). Although statutory requirements for speedy trial refer only to indictments and informations, the references held to include complaints. State v. Stevens, 189 Neb. 487, 203 N.W.2d 499 (1973). Two counts of an amended information, which were the same as counts found in the original information, were required to be dismissed under this section, but a new count was not affected, because 6 months had not passed since that charge had been filed. State v. Thompson, 10 Neb. App. 69, 624 N.W.2d 657 (2001).