State v. BlacksonState v. Blackson
- Reporters:
- , ,
- Before:
- Wright
NATURE OF CASE
Thе State of Nebraska appeals from an order of the Douglas County District Court which sustained Robert C. Blackson’s *105 motion to dismiss for failure to bring him to trial within 6 months of the date of an order granting Blackson a new trial.
SCOPE OF REVIEW
As a general rule, a trial court’s determination as to whether charges should be dismissed on speedy trial grounds is a factual question which will be affirmed on appeal unless clearly erroneous. State v. Gibbs, 253 Neb. 241, 570 N.W.2d 326 (1997).
On a question of law, an appellate court is obligated to reach a conclusion independent of the determination reached by the сourt below. State v. Jackson, 255 Neb. 68, 582 N.W.2d 317 (1998).
FACTS
On January 6, 1993, Blackson was charged with murder in the second degree (count I), two counts of use of a firearm to commit a felony (counts II and IV), and assault in the first degree (count III). Fоllowing trial, a jury rendered verdicts of guilty on all four counts, and Blackson was sentenced to life imprisonment on count 1,10 years’ imprisonment on count II, 6 to 10 years’ imprisonment on count III, and 10 yеars’ imprisonment on count IV, each sentence to be served consecutively. This court affirmed the convictions in State v. Blackson, 245 Neb. 833, 515 N.W.2d 773 (1994), which order was overruled by State v. White, 249 Neb. 381, 543 N.W.2d 725 (1996), and State v. Burlison, 255 Neb. 190, 583 N.W.2d 31 (1998).
Subsequently, Blackson sought postconviction relief, and on October 21, 1996, relying on our decision in White, the post-conviction court granted Blackson’s request for a new trial with regard to the second degree murder conviction and one of the convictions for use of a firearm to commit a felony. The convictions and sentences on the first degree assault charge and the other charge of use of a firearm to commit а felony were affirmed. The State did not appeal the order granting Blackson a new trial, and the State has not filed a new information charging Blackson with second degree murder and the related use of a firearm to commit a felony.
On September 30, 1997, Blackson moved to dismiss the second degree murder and use of a firearm to commit a felony
*106
charges pursuant to his right to a speedy trial under article I, § 11, of the Nebraska Constitution and
Relying on
ASSIGNMENT OF ERROR
The State asserts that the district court erred in granting Blackson’s motion to dismiss counts I and II.
ANALYSIS
An accused’s right to a speedy trial as guaranteed by the Sixth Amendment to the U.S. Constitution аnd the statutory implementation of that right under
It is undisputed that the State failed to сommence a new trial against Blackson within 6 months from the October 21, 1996, order granting a new trial and that there were no excludable periods applicable to this case. The Stаte did not appeal from *107 the order granting a new trial, and the State did not file a new or amended information after the order was entered.
It is the State’s position that the original information against Blackson was fatally defective and was therefore insufficient to charge Blackson with a crime. The State contends that absent a valid information, Blackson hаs not been charged, and that therefore the 6 months for computing the time in which Blackson must be tried has not commenced. The State asserts that since there is no statute of limitations rеquiring it to bring criminal charges for murder against a defendant within any time period, the State is free to file a new information against Blackson whenever it chooses. In the alternative, the Stаte argues that absent a valid information, the postconviction court lacked jurisdiction to issue the order for new trial, and that the district court lacked jurisdiction to issue the order of discharge.
The information originally filed against Blackson did not allege that he acted with malice in committing the crime of second degree murder. In contending that the original informatiоn against Blackson was fatally defective, the State relies upon a line of cases that this court has since overturned which held that malice was an essential element of thе crime of second degree murder. See, e.g., State v. Ryan, 249 Neb. 218, 543 N.W.2d 128 (1996); State v. Manzer, 246 Neb. 536, 519 N.W.2d 558 (1994); State v. Myers, 244 Neb. 905, 510 N.W.2d 58 (1994).
We first address the State’s position that both the postconviction court and the district court lacked jurisdiction. The State’s argument is that the information was fatally defective and, therefore, that Blackson was never charged with a crime in Douglas County. Extending this argument, the State asserts that the postconviction court lаcked jurisdiction to enter the order for a new trial and that the district court, which ordered the discharge, also lacked jurisdiction. As a result, the State claims it can file an amended information charging second degree murder at any time, because the 6-month statutory speedy trial period never began to run.
The fact that an information is fatally defective does not deny the trial court jurisdiction to issue any order relating to those purported charges. On the contrary, in Smith v. State, 169 Neb. 199, 99 N.W.2d 8 (1959), we indicated that an attack on an *108 indictment for the reason that it failed to sufficiently charge a crime is not thе same as a jurisdictional attack.
The determination of a jurisdictional issue which does not involve a factual dispute is a matter of law which requires an appellate cоurt to reach its conclusion independent from a trial court. State v. Dvorak, 254 Neb. 87, 574 N.W.2d 492 (1998). We conclude that the State’s argument that the postconviction court and the district court lacked jurisdiction is without merit.
We next address whether the district court correctly determined that Blackson was entitled to an absolute discharge of the charges of second degree murder and the relatеd use of a firearm to commit a felony. The State argues that the statutory right to a speedy trial becomes an issue when a person is indicted or informed against and that becausе the information was fatally defective, Blackson never was indicted or informed against. The State thus asserts that the statutory 6-month period has never run. This argument also lacks merit.
The Statе acknowledges that a new trial was granted by the postconviction court’s order of October 21, 1996.
In State v. Gibbs, 253 Neb. 241, 570 N.W.2d 326 (1997), we addressed a situation similar to that in the case at bar. The post-conviction court had previously granted Gibbs relief because it determined that thе original information was fatally defective for failing to allege malice as an element of second degree murder. The court vacated Gibbs’ plea of guilty to the defective information on February 29, 1996. The State filed a new information on April 12, and trial was set for August 20. The trial was delayed due to numerous pretrial motions, including two motions for continuance filed by Gibbs. On September 11, Gibbs filed a motion for absolute discharge, which the district court denied.
*109
We affirmed on appeal, stating that under the provisions of
Gibbs
controls our decisiоn in this case. Where a retrial is ordered, it is the trial for the specific criminal offenses originally charged and other offenses required by law to be joined therewith that must begin within 6 months of the retrial order. The 6-month period is computed by moving forward 6 months, backing up 1 day, and then adding any excludable periods.
State
v.
Gibbs, supra.
Thus, 6 months from the October 21, 1996, order granting a new trial would have been April 21, 1997, and backing up 1 day gives the date by which the new trial was required to commence as April 20. There were no periods excludable from the 6 months. Therefore, the State failed to bring Blackson to trial within the period required by
The judgment of the district court is affirmed.
Affirmed.