State v. Carrera, 911 N.W.2d 849

Background

Kim M. Carrera faced three felony counts consolidated into Sarpy County Dist. Ct. No. CR15-851: tampering with physical evidence (new charge) and two counts (child abuse; second-degree sexual assault of a protected individual) that were previously filed and dismissed in earlier proceedings (CR15-631 and CR15-586).
Original information in CR15-851 was filed December 10, 2015; Carrera filed multiple pretrial motions (discovery, depositions, bills of particulars, and two motions to suppress) and the court repeatedly continued suppression hearings; suppression was denied August 22, 2016.
Carrera moved for dismissal/absolute discharge on speedy trial grounds (statutory and constitutional) on November 3, 2016; district court denied the motion on January 3, 2017.
The court and parties disputed calculation of the six-month speedy trial period under Neb. Rev. Stat. §§ 29-1207 and 29-1208, specifically which days are excludable (motions pending, continuances, court/State delay) and how to tack time from the earlier dismissed informations.
The Court of Appeals reviewed statutory exclusions, tacking/tolling rules for direct informations, and applied both statutory speedy-trial computation and the four-factor constitutional speedy-trial test, ultimately affirming the district court.

Issues

Issue	Plaintiff's Argument (Carrera)	Defendant's Argument (State)	Held
Whether charges should be dismissed for statutory speedy-trial violation	Clock expired before trial; many delay days were attributable to court or State and not excludable	Majority of delay was excludable (defendant’s pretrial motions and some continuances); any nonexcludable time was tolled/tacked appropriately	Denial of discharge affirmed; statutory speedy-trial not violated for any count given proper exclusions and tacking rules
Proper computation of excludable days under § 29-1207(4)(a) for defendant’s pretrial motions	Court wrongly charged entire motion-pending period to defendant where delay was due to court/State actions	§ 29-1207(4)(a) excludes time from filing until final disposition of pretrial motions regardless of promptness; presumption delays are attributable to defendant unless record indicates otherwise	Majority of motion-pending time was properly excludable; 58 days were nonetheless treated as attributable to State for fairness but overall exclusion left speedy clock unexpired for counts I–III
Effect of earlier dismissed informations on speedy-trial clock for refiled charges	Time from earlier direct information or information should not add to current clock where preliminary hearing or true information never occurred	Time can be tolled/tacked depending on whether prior information was a direct information transformed into a true information	For CR15-631 (direct information) no preliminary hearing or waiver occurred, so the six-month clock never began there; no tacking required. For CR15-586, certain days ran and were tacked, but overall clock did not expire before Carrera’s motion
Constitutional speedy-trial claim (federal/state)	Delay length and reassignment/continuances violated constitutional right	Most delay attributable to defendant’s motions; defendant suffered no prejudice	Balancing the four Barker factors (length, reason, assertion, prejudice) found no constitutional violation; denial affirmed

Key Cases Cited

State v. Vela-Montes, 287 Neb. 679 (statutory speedy-trial computation rules)
State v. Williams, 277 Neb. 133 (pretrial motions toll time from filing to final disposition; court must make specific findings)
State v. Hettle, 288 Neb. 288 (tacking/tolling between dismissal and refiling)
State v. Boslau, 258 Neb. 39 (direct information treated as complaint until probable cause finding or waiver; speedy clock begins then)
State v. Wilcox, 224 Neb. 138 (judicial neglect may render delay non-excludable under catchall provision)
State v. Turner, 252 Neb. 620 (distinguishes Wilcox; delays properly excludable under § 29-1207(4)(a) without good-cause showing)
State v. Johnson, 22 Neb. App. 747 (appellate treatment of motion-pending exclusion when no judicial neglect shown)
State v. Mortensen, 287 Neb. 158 (filing an unsuccessful discharge motion can waive statutory speedy-trial rights under § 29-1207(4)(b))
State v. Brooks, 285 Neb. 640 (constitutional speedy-trial four-factor balancing)
State v. Feldhacker, 267 Neb. 145 (first excludable day is day after defendant files pretrial motions)