847 N.W.2d 95
Neb. Ct. App.2014Background
- Fioramonti was charged by information on Sept. 10, 2012, with drug-related offenses and set for trial within statutory speedy-trial period.
- He filed several pretrial motions (statutory discovery, return of property, motion to withdraw) on Sept. 26; those were disposed Oct. 16 after a continuance at the State’s request to which Fioramonti did not object.
- Trial was originally set for Jan. 28, 2013; the State moved to continue to Jan. 31 and then the case was rescheduled to March 20–22, 2013. Fioramonti conditionally stated no objection to the continuance "as long as the time runs against the State."
- On Mar. 6–8, 2013, Fioramonti moved to use depositions; the oral motion was denied on Mar. 8. He filed a motion to dismiss for statutory speedy-trial violation on Mar. 18, 2013.
- The district court denied the motion as premature, finding 22 days excludable under Neb. Rev. Stat. § 29-1207(4) (20 days for the Sept. motions; 2 days for the Mar. 6 oral motion), which extended the deadline to Apr. 1, 2013.
- The Court of Appeals affirmed denial of dismissal, and held that Fioramonti permanently waived his statutory speedy-trial right under State v. Mortensen by virtue of his motion to dismiss and ensuing appeal.
Issues
| Issue | Fioramonti's Argument | State's Argument | Held |
|---|---|---|---|
| Whether pretrial motions tolled the statutory speedy-trial clock | Motions did not cause a "delay" and thus should not be excluded | Time while motions pending is excludable under § 29-1207(4) | Court: motions tolled time; 22 days excluded (Oct.16 and Mar.8 dispositions) |
| Whether less than 6 months elapsed when motion to dismiss filed (i.e., was dismissal timely) | More than 6 months had elapsed; dismissal required | Excludable periods kept the deadline unexpired on Mar.18 | Court: motion premature; deadline extended to Apr.1, 2013 |
| Whether Fioramonti waived statutory speedy-trial rights by seeking dismissal and appealing | Fioramonti contends he preserved statutory right | State argues additional continuance time should be excluded and alternatively that waiver applies | Court: under Mortensen II, filing the motion to discharge that continued trial beyond the 6 months (and denial affirmed) constitutes permanent waiver |
| Whether constitutional speedy-trial claim was preserved/decided | Fioramonti raised constitutional speedy-trial right in brief | State: procedural default / not argued below | Court: claim not specifically assigned or argued on appeal; not addressed |
Key Cases Cited
- State v. Mortensen, 287 Neb. 158, 841 N.W.2d 393 (Neb. 2014) (interpreting § 29-1207 exclusions and holding a motion-to-discharge can effectuate waiver when it results in continuance beyond six months)
- State v. Feldhacker, 267 Neb. 145, 672 N.W.2d 627 (Neb. 2004) ("period of delay" and "period of time" are interchangeable for speedy-trial exclusion analysis)
- State v. Williams, 277 Neb. 133, 761 N.W.2d 514 (Neb. 2009) (excludable period for a motion begins the day after filing and ends on disposition)
- State v. Lafler, 225 Neb. 362, 405 N.W.2d 576 (Neb. 1987) (no requirement to show causation between excluded delay and failure to commence trial under Nebraska statute)