David W. Rieger, Jr., appeals from an order of the district court for Douglas County, Nebraska, denying his motion for postconviction relief which was premised on his counsel’s alleged ineffectiveness in seeking Rieger’s absolute discharge for the State’s failure to bring him to trial within the 180 days allowed by the interstate Agreement on Detainers (IAD), codified at Neb. Rev. Stat. § 29-759 (Reissue 1995). Rieger’s claim that his trial counsel failed to introduce into evidence a crucial document to show that the 180 days had run requires us to address the impact on the speedy trial count of a motion for withdrawal of counsel and appointment of new counsel. We hold that a motion for withdrawal of counsel is a motion which tolls the running of the 180-day speedy trial time.
*447 FACTUAL AND PROCEDURAL BACKGROUND
Rieger was convicted of robbing a supermarket in Omaha, Nebraska, on July 7,1995. On July 10, the State had filed a complaint against Rieger, charging him with the robbery. The State later filed a detainer against Rieger on May 31, 1996, while he was an inmate at the federal prison located in Leavenworth, Kansas. On July 23, Rieger mailed notice of his place of imprisonment and his request for disposition of the outstanding robbery charge in Douglas County, as well as a certificate of inmate status, to the Douglas County Attorney by certified mail. The return receipt was signed by the prosecutor’s office on July 29. An information was filed in the district court for Douglas County on September 26, again charging Rieger with robbery. Rieger filed a plea in abatement on October 1, alleging that as a matter of law, there was insufficient evidence adduced at the preliminary hearing to support a finding of probable cause to believe that a crime was committed or that he committed the same. Rieger’s plea in abatement was overruled on April 3, 1997.
On May 7, 1997, upon Rieger’s request, assistant public defender Jeffrey Thomas filed a motion to withdraw as Rieger’s attorney due to a conflict of interest. Thomas’ office had previously represented another defendant in connection with the same events, and such defendant remained a material witness in the State’s case against Rieger.
On May 12, 1997, the State filed an amended information charging Rieger with robbery and being a habitual criminal. At this point, we digress to point out that while the filing of an amended information which alleges a new crime starts the speedy trial clock anew as to such new crime, see
State
v.
Thompson,
Returning to the hearing of May 12, 1997, the motion for counsel to withdraw was heard, Thomas was allowed to withdraw *448 as counsel, and the court noted its intention to appoint James Regan to represent Rieger, although Regan was not at the hearing. At that same hearing, Rieger pled not guilty to the new information and the case was tentatively set for a jury trial on August 25, although the court stated that date could be moved up. The trial was later moved to August 18.
On August 5, 1997, Rieger, through his new attorney, Regan, filed a motion to discharge on the ground that he was not brought to trial within the time required by the IAD. Specifically, Rieger stated that he was not brought to trial within 180 days after he caused written notice of the place of his imprisonment and his request for final disposition of the indictment, information, or complaint to be delivered to the prosecuting officer and the appropriate court. At a hearing on August 18, three exhibits were offered and received into evidence: (1) Rieger’s request for disposition, (2) the prosecutor’s certification regarding the terms of transfer and custody, and (3) an affidavit from the deputy county attorney stating that the State had been ready for trial on May 12, but substitute counsel had to be appointed to represent Rieger due to the public defender’s conflict of interest, and that the August 25 trial date was set to accommodate Rieger and his attorney, not the State. We digress again to point out that the record of the May 12 proceeding does not support the material allegations of the deputy county attorney’s affidavit. As of May 12, no trial date had been set, and at the May 12 hearing, the court simply set the trial date of August 25 without any on-the-record consultation with the prosecution or Rieger. Moreover, attorney Regan, according to the trial judge’s comments on the record, had not been contracted to be appointed, or “accommodate[d]” with a trial date, and was not present.
On August 18, 1997, the district court denied Rieger’s motion to discharge, stating that while a technical computation of speedy trial time might favor Rieger, good cause had been shown for delay — Rieger had new counsel appointed at the May 12 hearing, and while the State and the court were ready to proceed, Rieger’s new counsel needed time to prepare for trial. Again, we emphasize that May 12 was not a trial date and that the parties were not before the court on that date for a trial. Thus, as will become apparent, the trial court’s reasons for denying the motion to *449 discharge are not fully supported by the record, and we do not agree with its reasoning for such denial.
The case proceeded to trial on August 18, 1997. On August 19, the jury found Rieger guilty of robbery. And, on August 22, the district court found Rieger to be a habitual criminal. Also on August 22, Rieger was sentenced to imprisonment for a period of 20 to 40 years, with 418 days’ credit for time served. The district court journal reflecting the jury’s verdict, the court’s finding that Rieger was a habitual criminal, and the court’s sentence was not effective until entered on October 8.
However, on September 16, 1997, Rieger filed a notice of appeal regarding the district court’s denial of his motion to discharge, which appeal was designated in this court as case No. A-97-976. Rieger alleged that he had not been tried within 180 days of his request for disposition pursuant to the IAD. On May 15, 1998, in a “Memorandum Opinion and Judgment on Appeal,” this court affirmed the judgment of the district court, but for reasons different from those the court cited in its decision. We found that Rieger’s request for disposition was not accompanied by a certificate of inmate status containing the information required by article 111(a) of the IAD. Therefore, we found that because Rieger’s request for disposition was not made in the manner required by the IAD, it was not effective and did not “trigger” the 180-day period. While the conclusion that the 180-day time limit had not been “triggered” was correct on the record before us then, as we later explain, it is not correct in light of the more complete record which we now have before us. Nonetheless, the result in our case No. A-97-976 was correct on the record available at that time from the lower court.
In Rieger’s next appeal to this court, filed November 4,1997, we vacated the district court’s sentence because the district court lacked jurisdiction at the time of sentencing insofar as the appeal from the motion to discharge was then pending in this court. Therefore, we remanded the cause for resentencing. See
State
v.
Rieger,
*450
A resentencing hearing was held on December 10, 1999, and Rieger was sentenced to imprisonment for a period of 20 to 40 years, with 1,241 days’ credit for time served, for his convictions of robbery and being a habitual criminal. Rieger appealed again, and his conviction and sentence were affirmed by the Nebraska Supreme Court on October 6, 2000. See
State
v.
Rieger,
Rieger filed his “Verified Motion for Postconviction Relief’ on September 24, 2001. In his motion, Rieger alleged ineffective assistance of counsel and violation of his right to a speedy trial. An evidentiary hearing was held on April 25, 2002, and continued to September 23. At the evidentiary hearing, Rieger’s trial counsel, Regan, testified that although the certificate of inmate status had been in his possession, he did not offer it into evidence during the hearing on the motion to discharge. Regan testified that he did not offer the certificate of inmate status at that hearing because, in his view, the request for disposition of the detainer under the IAD was not at issue; rather, he believed that only the computation of speedy trial time was at issue during the hearing.
Brent Bloom, a Nebraska attorney with a concentration in criminal law, testified as an expert witness. Bloom testified that the IAD requires the fifing of two things, the request for disposition and the certificate of inmate status, in order to “trigger” the running of the 180-day speedy trial provision of the IAD. Bloom also testified that by not offering the certificate of inmate status, Regan was ineffective when making a record to show compliance with the IAD. Bloom testified that if Regan had shown compliance with the IAD, the result could have been dismissal of Rieger’s case with prejudice — Bloom stated that Regan’s failure to file the certificate of inmate status made no difference to the trial judge, but that had this court reached the issue on direct appeal of the denial of the motion to discharge, this court would have ruled in Rieger’s favor. In summary, the claim is that had Regan merely put the certificate of inmate status into evidence, discharge would have been granted. Central to this contention is the underlying assumption that when the motion to discharge was filed on August 5, 1997, the 180 days had run.
*451 The postconviction court filed its order on May 22, 2003, finding that Rieger failed to meet his burden of proving that he was prejudiced by Regan’s failure to present the certificate of inmate status. The district court stated:
[Tjhe evidence establishes that Rieger himself was present with [assistant public defender] Thomas when the Court set the trial date beyond the 180-day limit and that both Rieger and Thomas tacitly acquiesced in that trial date. Additionally, the IAD specifically permits the Court to grant a continuance for good cause shown in open court with either the prisoner or his counsel present. Neb.Rev.Stat. §29-759 Art.II3(a). Accordingly, the Court finds and concludes that Rieger waived his right to seek dismissal because trial did not occur within the 180-day period. Thus, the Court finds and concludes that Rieger has failed to establish that he was prejudiced by Regan’s failure to present the Certificate [of inmate status] to the trial court or that the appellate court would have ruled differently when reviewing [the trial judge’s] denial of Rieger’s motion to discharge.
The district court also considered whether Rieger failed to establish prejudice on the alternative basis submitted by the State, i.e., good cause. The district court found that “the State’s evidence supports the finding of good cause,” because “[t]he State was ready to proceed and the defense was not ready to proceed in May 1997 due to [Thomas’] motion to withdraw and [the] resulting appointment of new counsel.” Accordingly, the district court denied Rieger’s motion for postconviction relief. Rieger now appeals.
ASSIGNMENTS OF ERROR
Rieger alleges that the district court erred in holding that (1) he was not prejudiced by Regan’s failure to offer the certificate of inmate status as evidence, because prejudice occurred when the Nebraska Court of Appeals, holding that the record failed to establish compliance with the IAD, refused to reach his arguments; (2) he waived his right to a speedy trial under the IAD; and (3) good cause existed to postpone his trial.
*452 STANDARD OF REVIEW
A criminal defendant requesting postconviction relief must establish the basis for such relief, and the factual findings of the district court will not be disturbed unless they are clearly erroneous.
State
v.
Hunt,
Ordinarily, 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. Knudtson,
ANALYSIS
Under article VI(a) of the IAD, the 180-day time period in which to try the prisoner is tolled “for as long as the prisoner is unable to stand trial, as determined by the court having jurisdiction of the matter.” In
State v. Meyer,
It is apparent from our examination of the record that the certificate [of inmate status] containing the information . . . required by article III[(a) of the IAD] did not accompany Rieger’s request to the prosecutor or the court. Consequently, because Rieger’s request was not made in the manner required, it was not effective and did not trigger the 180-day period.
However, the record presently before us is more complete than that before this court on direct appeal of the denial of the motion to discharge. The record now shows that the certificate of inmate status was in fact sent along with the other required documents, which were received on July 29,1996; thus, the 180-day period was in fact “triggered” on that date. The certificate was not presented as evidence to the court at Rieger’s hearing on the motion to discharge; nor was it available to us in the earlier *453 appeal. Because the record now before us establishes that the 180-day period was in fact “triggered” on July 29, 1996, we proceed to determine whether Rieger’s speedy trial rights were violated, which is the underlying predicate for his claim of ineffective assistance of counsel in this postconviction action.
Speedy Trial and Good Cause.
The IAD, particularly article 111(a) thereof, states in part: Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party state, and whenever during the continuance of the term of imprisonment there is pending in any other party state any untried indictment, information or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within one hundred eighty days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer’s jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information or complaint[.]
(Emphasis supplied.) Article 111(a) of tide IAD also states that the request must be accompanied by
a certificate of the appropriate official having custody of the prisoner, stating the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner, and any decisions of the state parole agency relating to the prisoner.
As indicated above, the required certificate under article 111(a) of the IAD is known as a certificate of inmate status. The Nebraska Supreme Court has said that the request and the certificate are required to “trigger” the running of the 180 days. See
State v.
Reynolds,
Because the IAD says in article VI(a) that tolling is determined by the court “having jurisdiction of the matter,” we believe it naturally follows that we apply our speedy trial jurisprudence to the technicalities — for example, on which precise day the count begins at the outset and on which day it is stopped
*454
for the defendant’s motions. “Speedy trial time is calculated by excluding the date the information was filed, counting forward 6 calendar months, backing up 1 day, and then adding the ex-cludable time periods to that date.”
State v. Feldhacker,
However, Rieger filed a plea in abatement on October 1, 1996, which filing constituted a “delay occasioned by the defendant”; thus, the speedy trial clock was tolled. See
State
v.
Meyer,
The 180-day speedy trial clock was again tolled when on May 7, 1997, Thomas filed his motion to withdraw as Rieger’s attorney. The Nebraska appellate courts have never addressed whether a motion to withdraw because of a conflict of interest tolls the speedy trial clock, under either the IAD or our own speedy trial statute, § 29-1207. We now hold that such a motion does toll the running of the 180 days under the IAD. We think it obvious that as a matter of fundamental fairness, when a motion to withdraw is filed on the ground that the defendant’s lawyer has a conflict of interest, no action of consequence to the
*455
defendant can occur in the pending case until the motion is resolved. Other jurisdictions have held that counsel’s motions to withdraw are pretrial motions tolling the speedy trial clock. See
U.S. v. Hammad,
We find only 5 days’ excludable time for the motion to withdraw, and because of that conclusion, we must point out that we disagree with the postconviction court’s finding that Rieger waived his right to a speedy trial and “tacitly acquiesced” in the August 25, 1997, trial date. We see this finding of “tacit acquiescence]” to a trial date outside the speedy trial date as simply another way of saying that Rieger waived his speedy trial rights. In other words, agreement, tacit or otherwise, to a trial date outside the last date under the 180-day time limit is a waiver.
The law is well established that a defendant may waive his or her right to a speedy trial under § 29-1207 so long as he or she is properly advised of his or her right to a speedy trial and the waiver is entered voluntarily, knowingly, and intelligently.
State
v.
Andersen,
Although the trial court said it would try to get the trial disposed of earlier, there was absolutely nothing said, nor discussion, nor mention by anyone of speedy trial rights that could be construed as a waiver of such rights by counsel, either by Thomas before his motion to withdraw was sustained or by Rieger after he was unrepresented (remembering that Regan, the lawyer the court intended to appoint after Thomas’ withdrawal, was not present). To the extent that the postconviction court’s finding of waiver is based on the silence of Rieger and Thomas when the trial court announced a trial date of August 25, 1997, such conclusion is wrong. See,
State
v.
Johnson,
Ineffective Trial Counsel.
The Nebraska Supreme Court has adopted a two-part test for proving a claim of ineffective assistance of counsel, as set forth by the U.S. Supreme Court in
Strickland
v.
Washington,
Attorney Regan, by his own admission, did not present the certificate of inmate status as evidence during the hearing on the motion to discharge. Expert witness Bloom testified that the IAD requires two things, the request for disposition and the certificate of inmate status. See, also, § 29-759, art. 111(a) (subsection comports with court’s holding in
State v. Reynolds,
218 Neb.
*458
753,
Did attorney Regan provide deficient representation by filing the motion to discharge 2 days early — -when the filing thereof had the consequence of extending the speedy trial clock while the motion was pending, and ultimately of extending it to a date 1 day after the trial had begun? As we earlier observed, neither the Nebraska Supreme Court nor this court has previously addressed whether a motion of counsel to withdraw would be considered “delay occasioned by the defendant” so as to toll the speedy trial clock under the IAD. See
State
v.
Meyer,
CONCLUSION
While our analysis of the speedy trial issue is different from the district court’s analysis, we affirm the district court’s result. See
Boettcher v. Balka,
Affirmed.