State v. Gill
297 Neb. 852
| Neb. | 2017Background
- Joseph A. Gill was charged in Nov. 2015 with multiple counts of first-degree sexual assault and incest arising from alleged acts occurring in the late 1990s and mid-2000s; some counts were partially quashed as time-barred.
- The district court ruled several counts timely based on post-2005 and post-2009 amendments to the statute-of-limitations statute for child sexual assault and incest.
- Trial was initially set for July 13, 2016; Gill moved on June 20, 2016 to continue because depositions were incomplete, and the court reset trial to Sept. 14, 2016 (Gill did not object to the new date).
- The State later obtained a continuance (over defense nonconsent) moving trial to Oct. 12, 2016; then the State sought and received leave to amend the information Oct. 11, 2016, adding habitual-offender facts; the court reset trial to Nov. 16, 2016 (defense counsel acquiesced).
- Gill filed a motion for absolute discharge (statutory and constitutional speedy-trial grounds) on Nov. 4, 2016; the court denied absolute discharge on Nov. 14, 2016, holding Gill permanently waived his statutory 6-month speedy-trial right by requesting a continuance that moved the trial date past the statutory period; Gill appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Statutory speedy-trial waiver under Neb. Rev. Stat. § 29-1207(4)(b) | State: Gill’s June 20 continuance request extended trial past 6 months, so Gill permanently waived statutory right | Gill: his continuance was for a definite period and did not effect a permanent waiver; not every filing should waive the clock | Held: waiver is permanent when a defendant’s continuance (definite or indefinite) moves a trial date past the 6-month period; Gill waived statutory right |
| Calculation of attributable delay | State: even absent waiver, total State-attributable delay did not exceed statutory limit | Gill: various delays attributable to the State made the statutory period expire | Held: court found Gill’s continuance moved trial beyond the 6-month clock as calculated when he moved, so calculation ended with waiver; no error in factual calculation |
| Constitutional speedy-trial claim | Gill: even if statutory waiver applied, his Sixth Amendment right was violated | State: constitutional claim lacks merit given circumstances and lack of prejudice | Held: constitutional speedy-trial claim rejected—permanent statutory waiver does not eliminate constitutional protection, but Gill did not prevail on constitutional claim |
| Appealability / statute-of-limitations motion to quash | Gill: trial court erred by not resolving/quashing counts as time-barred and should have considered that on appeal | State: ruling on motion to quash (statute of limitations) is not a final, appealable order and does not affect the absolute-discharge order | Held: appellate court lacks jurisdiction to review the motion-to-quash/statute-of-limitations issue here because that ruling is not a final order and was not decided in the absolute-discharge order |
Key Cases Cited
- State v. Mortensen, 287 Neb. 158 (interpretation that continuance moving trial beyond 6 months effects permanent statutory waiver)
- State v. Williams, 277 Neb. 133 (discussion of abuses of speedy-trial math and concurring call for waiver rule)
- State v. Vela-Montes, 287 Neb. 679 (application of waiver rule where motion extended trial beyond remaining speedy-trial days)
- State v. Loyd, 269 Neb. 762 (statute-of-limitations motion to quash is not a final, appealable order)
- State v. Gibbs, 253 Neb. 241 (ruling on absolute discharge as final, appealable order)