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In this decision by the Nebraska Court of Appeals, they address the question of whether any periods of time are excludable because the defendant failed to fulfill a plea bargain. Because the district court failed to make sufficient findings, the Court reversed, and remanded with directions.
State v. Vasquez, 16 Neb. App. 406 (2008)
Court of Appeals Headnotes
Judgments:
1. 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. Statutes: Appeal and Error. 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.
Speedy Trial.
1. Neb. Rev. Stat. § 29-1207 (Reissue 1995) requires that a defendant be tried within 6 months after the filing of the information, unless the 6 months are extended by any period to be excluded in computing the time for trial. ••• To calculate the time for speedy trial purposes, a court must exclude the day the information was filed, count forward 6 months, back up 1 day, and then add any time excluded under Neb. Rev. Stat. § 29-1207(4) (Reissue 1995) to determine the last day the defendant can be tried.
2. Proof. The burden of proof is upon the State that one or more of the excluded time periods under Neb. Rev. Stat. § 29-1207(4) (Reissue 1995) is applicable when the defendant is not tried within 6 months. ••• To overcome a defendant’s motion for discharge on speedy trial grounds, the State must prove the existence of an excludable period by a preponderance of the evidence.
3. Pretrial Procedure:
a. Where a motion to discharge on speedy trial grounds is submitted to a trial court, the excludable period attributable to a defendant’s pretrial motion is calculated from the date the motion is filed until the date the motion is granted or denied.
b. Motions to Suppress. Neb. Rev. Stat. § 29-1207(4)(a) (Reissue 1995) excludes from speedy trial calculations the time from filing until final disposition of pretrial motions by the defendant, including motions to suppress.
4. Words and Phrases. A “proceeding,” as used in the speedy trial statute provision governing delay resulting from proceedings concerning the defendant, is, in a more particular sense, any application to a court of justice, however made, for aid in the enforcement of rights, for relief, for redress of injuries, for damages, or for any remedial object. ••• The term “proceeding,” as used within Neb. Rev. Stat. § 29-1207(4)(a) (Reissue 1995), must be read narrowly.
5. Good Cause. Under Neb. Rev. Stat. § 29-1207(4)(f) (Reissue 1995), time may be excluded for a period of delay where good cause is shown. ••• Under a plain reading of Neb. Rev. Stat. § 29-1207(4)(f) (Reissue 1995), before an evaluation for good cause need be made, there must first be a “period of delay.” ••• If a trial court relies on Neb. Rev. Stat. § 29-1207(4)(f) (Reissue 1995) in excluding a period of delay from the 6-month computation, a general finding of good cause will not suffice and the trial court must make specific findings as to the good cause or causes which resulted in the extensions of time.
Appeal and Error.
1. When a trial court’s findings are incomplete, an appellate court must remand the cause for further consideration. ••• An appellate court is not obligated to engage in an analysis that is not needed to adjudicate the controversy before it.
Date Filed and Case No.: February 12, 2008. No. A-07-028.
Internet Address: http://www.supremecourt.ne.gov/opinions/2008/february/feb12/a07-028.pdf
Court Appealed From: District Court for Buffalo County: John P. Icenogle, Judge.
Attorneys for the Appeal: Stephen G. Lowe for Ronnie Vasquez, also known as Ronal D Vasquez, appellant. Jon Bruning and Kimberly A. Klein for State of Nebraska, appellee.
Judges: Inbody, Chief Judge, and Carlson and Cassel, Judges.
Authored By: Cassel, Judge.
Summary: Ronnie Vasquez, also known as Ronald Vasquez, appealed to the Nebraska Court of Appeals from an order overruling his motion for discharge, based upon his statutory right to a trial within 6 months and his federal and state constitutional rights to a speedy trial. On December 23, 2005, Vasquez was initially arrested for possession of a controlled substance with intent to distribute, but the charge was reduced to simple possession pursuant to a plea agreement (where Vasquez would assist law enforcement.) The State thereafter filed that case (the first case) in district court and complied with its portion of the agreement. Vasquez complied with the agreement until he was arraigned on February 10, 2006 when he entered a plea of not guilty. The charge in the first case was dismissed by the State on May 26. Following Vasquez’s failure to abide by the plea agreement, the case now being appealed was filed on August 16 (possession of a controlled substance with intent to deliver.) On November 28, Vasquez filed a motion for absolute discharge, premised both on Neb. Rev. Stat. §§ 29-1207 and 29-1208 (Reissue 1995) and on his state and federal constitutional rights to a speedy trial. On November 30, 2006, the district court conducted a hearing on the motion and the evidence consisted solely of exhibits, primarily the district court case files of the instant case and an earlier prosecution The court took the motion under advisement, Vasquez waived his right to trial by jury and on December 4, 2006, the matter proceeded to a bench trial. Before commencing the trial, the court overruled the speedy trial motion. Vasquez’ stood on the motion for discharge and a stipulation was entered into preserving his right to challenge the court’s ruling on that motion while being sufficient to find him guilty of the charge. On January 3, 2007, Vasquez filed this notice of appeal.
Did the district court err in overruling Vasquez’s motion to discharge, because the court erred in excluding certain time periods? The Court performed initial calculations in light of the Nebraska statutory speedy trial jurisprudence.
1. Combining the two informations for time calculations, the Court examined exclusions unique to the combination. The district court found that the periods during which the two informations were pending must be combined in determining the last day for commencement of trial under the speedy trial act. As the first information against Vasquez was filed on December 23, 2005, disregarding time periods excludable under § 29-1207(4) and the tolling during dismissal, the last day the State could have brought Vasquez to trial would have been June 23, 2006. However, the time chargeable to the State is tolled during the interval between the State’s dismissal of the initial information (May 26, 2006) and the filing of the second information (August 16, 2006), tolling the period for 81 days. After adding this period, but not yet considering any excludable periods, the last date for commencement of trial was extended to September 12, 2006.
2. Otherwise excluded time. Vasquez, in the first prosecution, filed a motion to suppress on March 17, 2006, and that the motion remained undisposed at the time of the State’s dismissal. The Court said the 70-day period from March 17, 2006, to May 26, 2006, is clearly excludable. The last day for commencement of trial would have been Tuesday, November 21. As a result, Vasquez’ motion for discharge was filed 7 days after the last day for commencement of trial (unless there were other excludable periods.) When Vasquez filed his motion for absolute discharge, the speedy trial clock, if it had not already expired, again stopped. Thus, the period from November 28, 2006, when the motion was filed, to December 4, 2006, when the motion was overruled, is excluded under § 29-1207(4)(a). Because the trial was immediately held on December 4, the question becomes whether there are any other excludable period of at least 7 days.
3. Exclusion relating to plea bargain. The district court specifically found that two periods were excludable: (1) from the date of the plea agreement to the entry of the plea of not guilty in the first case and (2) from the date of the not guilty plea in the first case to the filing of the second prosecution. The district court did not articulate the statutory basis of such exclusions. The Court of Appeals said that several portions of these periods are not chargeable or excludable for reasons unrelated to the existence of a plea bargain. 1) Though the plea agreement was reached prior to the filing of the first information, the speedy trial clock did not begin to run until the first information was filed, thus the time is not an excludable or chargeable. 2) Speedy trial time is tolled during the period between the dismissal of the first information and the filing of the second information. 3) The period relating to Vasquez’ motion to suppress has already been excluded. The Court concluded that insofar as the plea bargain was concerned, they considered two periods: (1) from the filing of the first information (December 23, 2005) to the date of entry of the plea of not guilty (February 10, 2006) and (2) from the date of the plea to the date of filing of the motion to suppress (March 17, 2006). These represented periods of 49 days and 35 days, respectively. When the Court considered the district court’s factual findings regarding an agreement they determined that the court’s factual findings that there was a plea agreement and that both parties complied until the time of arraignment in the first case were not clearly erroneous. Turning to the statutory basis for any further exclusion it appeared that the basis for exclusion must be found, if at all, in the catchall exclusion for “good cause” provided by § 29-1207(4)(f). Here, the district court made certain findings of historic fact, but the court did not make any finding regarding the causal connection, if any, between the plea bargain and any delay in the subsequent proceedings. “Indeed,” they wrote “the court’s findings did not identify a specific delay, but simply excluded certain broad periods of time, parts of which were irrelevant to the speedy trial calculation or already excluded under § 29-1207(4)(a).” As the district court’s findings were incomplete, The Court had to remand the cause for further consideration.
Conclusion: The Court concluded that the district court erred in excluding any time periods relating to the plea bargain under § 29-1207(4)(a). Even if such periods might be excluded under § 29-1207(4)(f), the Court found that the district court made no findings in that regard. “Accordingly, we reverse, and remand with directions to the district court to determine whether, based on the existing record, the State proved by a preponderance of the evidence that the time from the filing of the first information to the entry of the plea of not guilty or the time from the entry of the plea to the filing of the motion to suppress, or both, is excludable for good cause, supported by specific findings.” REVERSED AND REMANDED WITH DIRECTIONS.
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