848 N.W.2d 582
Neb.2014Background
- In Nov. 2010 a county court complaint charged Hettle with multiple sexual offenses; several counts were bound over to district court and an information was filed Feb. 2, 2011 charging four counts (three felonies, one misdemeanor).
- Defense counsel (Commission on Public Advocacy) was appointed July 19, 2011 and on July 21, 2011 moved for an indefinite continuance for research and discovery; the court granted the continuance and Hettle never gave notice of request for trial thereafter.
- The State filed an amended information Dec. 12, 2011 adding and modifying counts (including adding a misdemeanor) while keeping several original felony counts.
- County court later held a probable cause hearing that resulted in dismissal of one amended count and the case was again bound over to district court; district court denied a defense severance motion and set trial for April 2013 (no objection lodged by counsel).
- On Apr. 1, 2013 Hettle moved for absolute discharge under Neb. Rev. Stat. § 29-1207 and constitutional speedy-trial and due-process provisions; the district court denied the motion and Hettle appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Hettle is entitled to absolute discharge under Neb. Rev. Stat. § 29-1207 because the statutory 6-month period lapsed | Hettle: the amended information operated as a dismissal/abandonment of the original information, extinguishing his counsel's prior indefinite continuance; therefore non-excludable time under the original information should be tacked to the amended information and the 6-month period was exceeded | State: the amended information preserved the original charges (adding new ones), so the continuance and waiver remain effective; the statutory clock had not run | Held: Affirmed. The July 2011 indefinite continuance remained effective under § 29-1207(4)(b); adding charges did not extinguish the continuance as to the ongoing prosecution, so the 6-month statutory period had not run. |
| Whether tacking-and-tolling applies so pre-amendment nonexcludable time must be tacked to the amended information | Hettle: pre-amendment nonexcludable time should be tacked onto the amended information because the amendment allegedly dismissed/abandoned the prior information | State: tacking only applies where the original information was actually dismissed and refiled for the same offenses; here many original charges remained, so no abandonment occurred | Held: The court held tacking-and-tolling is inapplicable where the amended information continues original charges; time continues to run on unchanged charges and tacking is unnecessary. |
| Whether the constitutional right to a speedy trial was violated | Hettle: delay violated Sixth Amendment and Nebraska Constitution | State: delay was largely attributable to defense (indefinite continuance); counsel’s acts are charged to defendant | Held: No constitutional violation. Under Barker balancing and precedent (attorney delay charged to defendant), Hettle waived his speedy-trial claim. |
| Whether Hettle's due process rights were violated by delay | Hettle: asserted oppressive delay in violation of Fifth Amendment due process | State: Fifth Amendment requires bad faith and substantial prejudice and is rarely implicated post-arrest/indictment | Held: No due-process violation; Hettle failed to show bad faith and substantial actual prejudice. |
Key Cases Cited
- State v. Mortensen, 287 Neb. 158 (permanent statutory waiver under § 29-1207(4)(b))
- State v. French, 262 Neb. 664 (amended complaint that drops original crimes can operate as dismissal for speedy-trial tacking analysis)
- Barker v. Wingo, 407 U.S. 514 (Sixth Amendment speedy-trial balancing test)
- Vermont v. Brillon, 556 U.S. 81 (delay caused by counsel is typically charged to the defendant)
- U.S. v. Gonzales, 897 F.2d 1312 (motions pending on original charges toll the speedy-trial clock for superseding indictments unless court rules otherwise)