981 N.W.2d 612
Neb. Ct. App.2022Background:
- Ramos was charged in Oct 2017 with murder and related felonies arising from a March 2, 2017 prison incident; trial began Aug 6, 2018.
- On Aug 13, 2018 the district court granted a mistrial after alleged witness sequestration violations; the court scheduled a retrial (to be held in Saline County after a venue change).
- Ramos filed a plea in bar on Nov 2, 2018 alleging prosecutorial misconduct that barred retrial; the district court denied the plea on Aug 30, 2019, Ramos appealed, and the appellate mandate was spread in the district court on Mar 31, 2021.
- A retrial was set for Aug 10, 2021; Ramos moved for absolute discharge on speedy-trial grounds on July 21, 2021; the district court denied the motion on Oct 29, 2021.
- On appeal the court analyzed when the six-month speedy-trial period began, which periods were excludable (plea in bar tolling and change-of-venue), and whether the court had jurisdiction to review Ramos’ constitutional speedy-trial claim.
Issues:
| Issue | Plaintiff's (State) Argument | Defendant's (Ramos) Argument | Held |
|---|---|---|---|
| When does the § 29-1207 six-month period begin for a retrial after mistrial? | Six-month clock was tolled and effectively reset by the post-appeal mandate; later start (mandate) controlled deadline. | Clock began at mistrial (Aug 13, 2018); appeal/plea in bar merely tolled the clock. | Held that under State v. Bixby the six-month period begins at the mistrial date (Aug 13, 2018); plea in bar only tolls the clock until mandate. |
| Effect of plea in bar on speedy-trial computation | Time during interlocutory appeal is excludable (plea in bar tolls from filing until mandate). | The period after denial until mandate should not all be excluded. | Held plea in bar tolled the speedy-trial clock from filing (Nov 2, 2018) through issuance of the mandate (Mar 31, 2021); entire interval excluded. |
| When did the change-of-venue exclusion begin (Aug 23 vs Aug 30)? | Excludable period began Aug 23 (an oral motion was made at the telephonic hearing). | Excludable period began Aug 30 (the date of the State’s stipulation). | Held Ramos had made an oral motion Aug 23 (court found and § 29-1301 permits defendant to move); excluded Aug 23–Sept 5 (14 days). |
| Reviewability of constitutional speedy-trial claim on interlocutory appeal | Pretrial orders denying constitutional speedy-trial discharge are not appealable to this court. | Argued his constitutional speedy-trial rights were violated and the denial should be reviewable. | Held appellate jurisdiction lacking under State v. Abernathy; constitutional-speedy-trial claim dismissed for lack of appellate jurisdiction. |
Key Cases Cited
- State v. Bixby, 311 Neb. 110, 971 N.W.2d 120 (Neb. 2022) (holding a plea in bar tolls the statutory speedy-trial clock from filing until the mandate on remand and that the six-month period begins at the mistrial date)
- State v. Abernathy, 310 Neb. 880, 969 N.W.2d 871 (Neb. 2022) (holding pretrial orders denying discharge on constitutional speedy-trial grounds are not appealable under § 25-1902(1)(b))
- State v. Mortensen, 287 Neb. 158, 841 N.W.2d 393 (Neb. 2014) (explaining waiver of statutory speedy-trial rights by filing unsuccessful motions that extend trial beyond statutory period)
- State v. Huff, 279 Neb. 68, 776 N.W.2d 498 (Neb. 2009) (appellate courts may affirm trial-court decisions on different grounds when record supports correctness)
Overall disposition: The appellate court affirmed the district court’s denial of Ramos’ motion for absolute discharge on statutory speedy-trial grounds (finding Ramos’ July 21, 2021 motion was premature because the computed deadline was July 27, 2021) and dismissed the constitutional-speedy-trial portion of the appeal for lack of jurisdiction.