State v. Lovvorn, 932 N.W.2d 64

Background

State filed information against Daniel J. Lovvorn on Jan. 19, 2018; trial originally set for June 14, 2018.
Lovvorn requested a continuance of an April 9 pretrial hearing to June 11; the trial date remained June 14.
State moved to continue trial on June 4 (granted June 12), moving trial to July 17; Lovvorn objected “for the record.”
State moved again on July 5 (granted July 9) due to witness unavailability; case transferred to another judge and new dates were set, ultimately scheduling trial for Sept. 11.
Lovvorn filed a motion for discharge on statutory and constitutional speedy trial grounds on Sept. 6; the district court denied discharge and Lovvorn appealed.
Nebraska Supreme Court affirmed, finding (1) defendant’s continuance of the pretrial hearing and the State’s continuances produced excludable time under Neb. Rev. Stat. § 29-1207 and (2) no Sixth Amendment violation under Barker v. Wingo.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Lovvorn)	Held
Whether time excluded under § 29-1207(4)(b) when defendant requested continuance of a pretrial hearing	Continuance requested by defendant produced excludable delay under § 29-1207(4)(b); compute excluded days from day after continuance granted through day it ended	The statute excludes only delays that postpone a scheduled trial; his continuance did not move the trial date so no excludable time	Court held defendant’s continuance of the pretrial hearing produced excludable time; 63 days excluded for that continuance
Whether additional time was excludable for State’s continuances under § 29-1207(4)(c)	State: first and second motions to continue produced excludable time (witness unavailability)	Lovvorn: second continuance and judge transfer did not produce excludable time	Court accepted at least the first State continuance as excludable (35 days); did not need precise total because excluded time kept trial within statutory limit
Whether filing motion for discharge waived statutory speedy-trial claim when motion itself delayed trial beyond statutory period	Motion for discharge, if it causes continuance of a timely trial beyond statutory period and discharge is denied and denial affirmed, operates as waiver under Mortensen	Motion for discharge seeks dismissal; cannot be treated as waiver because it asserts the statutory right	Court held Mortensen applies: Lovvorn’s discharge motion resulted in continuance beyond any remaining statutory period, was denied, and denial affirmed—thus statutory right waived
Whether Lovvorn’s Sixth Amendment right to a speedy trial was violated	Delay was largely caused by valid reasons (witness unavailability); defendant’s objections were pro forma; no shown prejudice—Barker factors weigh against violation	Delay and transfers prejudiced defendant; he objected; constitutional protection independent of statute	Court applied Barker factors and found no constitutional violation: length and reason for delay, defendant’s weak objections, and lack of demonstrated prejudice favored State

Key Cases Cited

State v. Vela-Montes, 287 Neb. 679 (establishes calculation method and discharge remedy under Nebraska speedy-trial statute)
State v. Williams, 277 Neb. 133 (calculation of excludable time for continuances begins day after continuance granted and includes last day)
State v. Bridgeford, 298 Neb. 156 (discussed pretrial-conference continuance; court disapproved some language inconsistent with Williams)
State v. Feldhacker, 267 Neb. 145 (no meaningful distinction between “period of delay” and “period of time” in § 29-1207)
State v. Mortensen, 287 Neb. 158 (holding that a defendant’s motion to discharge can waive statutory speedy-trial rights when it causes trial to be continued beyond statutory period and denial is affirmed)
Barker v. Wingo, 407 U.S. 514 (establishes four-factor balancing test for Sixth Amendment speedy-trial claims)