State v. Gill, 297 Neb. 852

Background

In November 2015 Joseph A. Gill was charged with multiple counts of first-degree sexual assault and incest based on alleged conduct from the late 1990s and mid-2000s; some counts were challenged as potentially time-barred.
Gill moved to quash portions of the information on statute-of-limitations grounds; the district court partially granted and partially denied that motion in February 2016.
Trial was originally set for July 13, 2016. On June 20, 2016 Gill orally moved to continue because depositions were not complete; the court continued trial to September 14, 2016 and Gill did not object to the new date.
The State later moved to continue for witness pregnancy and then amended the information to add habitual-offender allegations; additional continuances were granted and a November 16, 2016 trial date was set.
Gill filed a motion for absolute discharge (statutory and constitutional speedy-trial claims) and another motion to quash (statute-of-limitations). The district court denied absolute discharge, concluding Gill permanently waived his statutory speedy-trial right by requesting a continuance that extended trial beyond the 6-month statutory period; the court did not rule on the separate motion to quash.
Gill appealed the denial of absolute discharge. The Nebraska Supreme Court reviewed statutory interpretation de novo and factual speedy-trial determinations for clear error.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Gill)	Held
Whether Gill permanently waived the statutory 6-month speedy-trial right under Neb. Rev. Stat. § 29-1207(4)(b) by requesting a continuance that moved trial past the 6 months	The continuance Gill requested extended the trial date beyond the 6-month clock and thus, under § 29-1207(4)(b), Gill permanently waived the statutory speedy-trial right	Gill argued his continuance was for a definite period and that the statute should not be read to create a permanent waiver for any continuance; he warned this reading could render many routine defense filings into waivers	Held: Affirmed. The court applied § 29-1207(4)(b) broadly and ruled waiver is permanent when a defendant’s continuance—as here—moves trial past the statutory 6-month period; definite vs. indefinite continuances is irrelevant to waiver
Whether Gill was denied his constitutional right to a speedy trial	The State argued even if statutory waiver occurred, Gill’s constitutional claim lacked merit and required the balancing test (length, reason for delay, assertion, prejudice)	Gill argued constitutional protection remained and that he suffered violation despite statutory waiver	Held: No constitutional speedy-trial violation found on these facts; statutory waiver does not eliminate constitutional protection but Gill’s constitutional claim failed
Whether the statute-of-limitations motion (motion to quash) was properly before the court on appeal	The State argued a ruling on the motion to quash is not a final, appealable order and the district court did not rule on that motion below	Gill argued the trial court erred by failing to resolve his motion to quash and preserved the issue for appeal	Held: The appeal court lacked jurisdiction to consider the statute-of-limitations claim because a ruling on a motion to quash is not a final appealable order and the district court did not decide that motion
Whether appellate review of the denial of absolute discharge should reassess factual speedy-trial calculations	The State maintained the district court’s factual calculations should stand absent clear error	Gill challenged the court’s computation and attribution of excludable days	Held: The court found no clear error in the district court’s calculation that Gill’s June 20, 2016 continuance moved the trial date beyond the statutory period and upheld the factual determination

Key Cases Cited

State v. Hettle, 288 Neb. 288, 848 N.W.2d 582 (2014) (discusses waiver under speedy-trial statute)
State v. Mortensen, 287 Neb. 158, 841 N.W.2d 393 (2014) (interprets § 29-1207(4)(b) to create permanent waiver when defendant-requested continuance moves trial past 6 months)
State v. Vela-Montes, 287 Neb. 679, 844 N.W.2d 286 (2014) (applies Mortensen to motions that extend trial beyond the statutory period)
State v. Williams, 277 Neb. 133, 761 N.W.2d 514 (2009) (background on concerns about abuse of the speedy-trial clock and concurring opinion prompting statutory amendment)
State v. Loyd, 269 Neb. 762, 696 N.W.2d 860 (2005) (statute-of-limitations rulings are not final appealable orders)
State v. Gibbs, 253 Neb. 241, 570 N.W.2d 326 (1997) (absolute discharge on speedy-trial grounds is a final, appealable order)