State v. Gill, 297 Neb. 852

Background

Joseph A. Gill was charged in November 2015 with multiple counts of first-degree sexual assault and incest arising from alleged historical offenses involving minors.
Gill moved to quash the information as time-barred; the trial court sustained part of that motion and denied other parts, concluding several counts were timely under statutory amendments.
Trial was initially set for July 13, 2016. On June 20, 2016, Gill orally moved to continue because depositions were incomplete; the court granted a continuance and set trial for September 14, 2016.
The State later obtained a continuance for a victim’s pregnancy, moving trial to October 12, 2016; the court then allowed the State to amend the information to add habitual-offender facts and reset trial to November 16, 2016.
On November 4, 2016, Gill renewed a motion to quash (statute of limitations) and moved for absolute discharge asserting statutory and constitutional speedy-trial violations. The court denied absolute discharge on November 14, 2016, finding Gill permanently waived his statutory 6-month speedy-trial right by requesting a continuance that moved the trial beyond six months; Gill appealed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Gill permanently waived the statutory 6-month speedy-trial right under Neb. Rev. Stat. § 29-1207(4)(b) when he moved to continue trial on June 20, 2016	State: The continuance requested by Gill extended the trial beyond the statutory six months and thus effected a permanent waiver under the statute	Gill: His continuance was for a definite period and did not constitute a permanent waiver; not every defendant filing a motion should forfeit the statutory right	Court: Waiver is triggered whenever a continuance requested by the defendant extends trial beyond the 6-month period; the definite vs indefinite nature is irrelevant — waiver affirmed.
Whether Gill’s constitutional speedy-trial right was violated	State: Even if statutory waiver occurred, constitutional right requires a separate balancing test and was not shown to be violated	Gill: Even with statutory waiver, the total delay and circumstances violated his Sixth Amendment right	Court: Constitutional claim rejected on the merits (no entitlement to discharge).
Whether the trial court erred by failing to rule on Gill’s separate motion to quash (statute of limitations) and whether that issue is reviewable on this appeal	Gill: Trial court’s failure to decide the motion to quash was error and the statute-of-limitations claim is reviewable	State: A ruling on statute of limitations is not a final, appealable order; Gill did not secure a ruling below so appellate jurisdiction is lacking	Court: Lacked jurisdiction to consider the statute-of-limitations assignment because such rulings are not final orders and the November order did not decide the quash motion.
Whether the reason for, or indefinite/definite nature of, a continuance matters to waiver under § 29-1207(4)(b)	State: The statute’s plain language governs and does not limit waiver to particular reasons or to indefinite continuances	Gill: The amendment targeted indefinite continuances; a definite continuance should not trigger permanent waiver	Court: Reason and definite/indefinite character are irrelevant; the statute effects permanent waiver when the defendant-requested continuance moves trial past six months.

Key Cases Cited

State v. Mortensen, 287 Neb. 158, 841 N.W.2d 393 (explaining § 29-1207(4)(b) creates permanent statutory waiver when defendant-requested continuance moves trial beyond six months)
State v. Williams, 277 Neb. 133, 761 N.W.2d 514 (background on abuses of the speedy-trial clock and impetus for statutory amendment)
State v. Vela-Montes, 287 Neb. 679, 844 N.W.2d 286 (applied Mortensen to motions that effectively continued trial beyond the statutory period)
State v. Loyd, 269 Neb. 762, 696 N.W.2d 860 (statute-of-limitations rulings do not produce final, appealable orders)