State v. Mortensen, 841 N.W.2d 393

Randy L. Mortensen was charged in Oct. 2009; two motions to discharge for statutory speedy-trial violations were filed (Oct. 25, 2010 and Apr. 10, 2012), each filed just before scheduled trial dates and each argued instead of holding trial.
The district court denied both motions; on the first denial the Court of Appeals affirmed (calculating 112 days remained), and this Court denied further review; mandate and district-court action set a later trial date.
Mortensen’s second motion likewise delayed a trial date that would have been within the statutory six-month period; the district court found 28 days remained and overruled the motion. Court of Appeals affirmed; the State sought further review to argue additional exclusion of time because motions were frivolous and prejudiced the State.
The Supreme Court granted further review to address whether repeated motions to discharge that postpone timely trials operate as waiver under the 2010 amendment to Neb. Rev. Stat. § 29-1207(4)(b).
The Court held that a motion to discharge that necessitates continuing a timely trial beyond the statutory six months functions as a defendant-requested continuance and, if unsuccessful and later affirmed on appeal, effects a statutory waiver of the defendant’s statutory speedy-trial right.

Issue	Plaintiff's Argument (State)	Defendant's Argument (Mortensen)	Held
Whether motions to discharge that delay trial can be treated as defendant-requested continuances causing waiver under amended § 29-1207(4)(b)	Amendment should exclude delays caused by frivolous or prejudicial motions; defendant shouldn’t be allowed to game the clock	Motion to discharge is a standalone statutory remedy; clock should run from denial of further review (Dec. 14, 2011) not from mandate entry	Motion to discharge functions as a request for continuance; when such motion postpones a timely trial beyond six months, and discharge is denied and that denial is affirmed on appeal, the defendant waives the statutory speedy-trial right under § 29-1207(4)(b)
Whether Court of Appeals erred in computing remaining days and in refusing State’s request to exclude additional days without cross-appeal	State sought additional exclusions for time consumed by frivolous motions; Court of Appeals should have considered exclusion	Court of Appeals’ computation (district reacquiring jurisdiction) was correct; Mortensen argued clock resumed at denial of review	Because Mortensen waived the statutory right under § 29-1207(4)(b), exact day count is unnecessary; district court to set trial when it regains jurisdiction

State v. Brooks, 285 Neb. 640 (explains statutory speedy-trial computation and exclusions)
Pinnacle Enters. v. City of Papillion, 286 Neb. 322 (addresses independent review of statutory interpretation)
State v. Williams, 277 Neb. 133 (discusses abuse of speedy-trial rules and prompted legislative amendment)
State v. Lafler, 225 Neb. 362 (describes purpose of speedy-trial statutes: protect accused from undue delay)
State v. Abram, 284 Neb. 55 (holding that a notice of appeal divests the trial court of jurisdiction pending resolution)