A jury in the district court for Lancaster County convicted Cheryl Sumstine of first degree arson, a violation of Neb. Rev. Stat. § 28-502(1) (Reissue 1989), which is a Class II felony. Sumstine was sentenced to imprisonment.
In her two assignments of error, Sumstine contends, first, that her right to a speedy trial, required by Nebraska’s speedy trial act, Neb. Rev. Stat. §§ 29-1207 et seq. (Reissue 1989), was violated and, second, that the evidence is insufficient to sustain her conviction.
*709 BACKGROUND
Filed on June 26, 1989, an information charged Sumstine with second degree arson, a Class III felony, and alleged that Sumstine intentionally set fire to her apartment building at 837 G Street on April 29, 1989, a violation of Neb. Rev. Stat. § 28-503(1) (Reissue 1989): “A person commits arson in the second degree if he or she intentionally damages a building by starting a fire ...” After Sumstine’s arraignment on June 28, 1989, at which her trial was scheduled for September 11, the State, on September 7, obtained the court’s permission to endorse the information with the names of 3 witnesses in addition to the 29 witnesses already endorsed on the information and take depositions within 40 days, but apparently did not take those depositions. While the record fails to disclose the nature of the proposed amendment to the information, on October 18 the court authorized the State to file an amended information against Sumstine within 7 days, but the State did not file the amended information. However, on November 9, the prosecutor appeared before the court and, without explanation reflected in the record, dismissed the pending second degree arson charge against Sumstine.
On January 8, 1990, the State filed an information against Sumstine charging her with first degree arson, a violation of § 28-502(1), which states:
A person commits arson in the first degree if he or she intentionally damages a building by starting a fire . . . when another person is present in the building at the time and either (a) the actor knows that fact, or (b) the circumstances are such as to render the presence of a person therein a reasonable probability.
The 1990 arson charge alleged that Sumstine set fire to her apartment building at 837 G Street on April 29, 1989, and, in accordance with § 28-502(1), contained the allegation concerning a person’s presence in the building set afire.
At her arraignment on January 10, 1990, Sumstine pled not guilty to the first degree arson charge. Immediately before trial on April 9, Sumstine moved for dismissal of the pending arson charge against her and based her claim to dismissal on the State’s failure to comply with the Nebraska speedy trial act and *710 bring her to trial within 6 months after the second degree arson information was filed in June 1989. Section 29-1207(1) of Nebraska’s speedy trial act provides: “Every person indicted or informed against for any offense shall be brought to trial within six months, and such time shall be computed as provided in this section.” Section 29-1207 thereafter sets forth the method of computing the 6-month period for commencement of trial after an information has been filed, including specified periods of time excludable for the computation and a catchall exclusion: “Other periods of delay not specifically enumerated herein [shall be excluded], but only if the court finds that they are for good cause.” § 29-1207(4)(f). Section 29-1208 of the speedy trial act states: “If a defendant is not brought to trial before the running of the time for trial, as extended by excluded periods, he [or she] shall be entitled to his [or her] absolute discharge from the offense charged and for any other offense required by law to be joined with that offense.”
In arguing her dismissal motion in the district court, Sumstine contended that the previous second degree arson charge in 1989 was a “lesser grade felony” included within the pending first degree arson charge in 1990; therefore, the time during which the second degree charge was pending should be “tacked” to the period of pendency for the first degree arson charge, resulting in expiration of 6 months without Sumstine’s trial and entitling her to absolute discharge from the first degree arson charge. The doctrine of tacking allows joining or combining periods which have a nexus for continuity of time involved in separated events or actions, for example, tacking based on privity of estate for adverse possession of realty, see
Bryan v. Reifschneider,
In opposing Sumstine’s dismissal motion, the State asserted that the two arson informations related to “two different cases” and that, in cases such as Sumstine’s, the practice of a prosecutor’s voluntarily dismissing and refiling charges w.as *711 “done all of the time and done in the past and will be done in the future.” Responding further to Sumstine’s motion, the prosecutor stated:
I don’t think there has been any prejudicial effect of any kind. I am not sure what the tactical advantage was by filing one or the other [charge against Sumstine]. It doesn’t appear to me to make any particular difference at this particular time. Again, it has been done numerous times. There is no showing of any kind of prejudice, wrongful doing by the State in so doing and I just think that again it’s ready to go to trial and the State is ready.
The district court overruled Sumstine’s dismissal motion based on the speedy trial act. Sumstine was tried and convicted, and has appealed with the assignments of error previously mentioned.
SPEEDY TRIAL
Sumstine claims she should have been discharged from the arson charge, since she was not brought to trial within 6 months as required by the Nebraska speedy trial act, §§ 29-1207 to 29-1209. Since Sumstine did not raise the question of her constitutional right to a speedy trial, we consider only Sumstine’s contention based on Nebraska’s speedy trial act. See,
State
v.
Oldfield,
“The purpose of Nebraska’s speedy trial act, sometimes called the ‘6-month rule,’ is protection of an accused from a criminal charge pending for an undue length of time.”
State
v.
Lafler,
The basic purpose of the Speedy Trial Act is to provide for the efficient administration of justice, which, according to our legislature, is best effectuated through a prompt determination of a criminal defendant’s guilt or *712 innocence. The Act’s delineation of specific time limits and exclusions serves as a guideline for processing cases, and thus provides a technical defense for criminal defendants.
In reference to the federal Speedy Trial Act of 1974, 18 U.S.C. §§ 3161 et seq. (1988), the court stated in
U.S. v. Cephas,
Accordingly, referring to the Nebraska speedy trial act, we have stated:
“ ‘To avoid a defendant’s absolute discharge from an offense charged, as dictated by § 29-1208, the State, by a preponderance of evidence, must prove existence of a period of time which is authorized by § 29-1207(4) to be excluded in computing the time for commencement of the defendant’s trial in accordance with the Nebraska speedy trial act, or “6-monthrule.”...’ ”
State
v.
Oldfield, supra
at 441,
To obtain absolute discharge under § 29-1208, a defendant is not required to show prejudice sustained as the result of failure to bring the defendant to trial within 6 months in accordance with the Nebraska speedy trial act. State v. Lafler, supra.
The first information against Sumstine was filed on June 26, 1989; hence, the last day for commencement of Sumstine’s trial on the first information was December 26, 1989. See
State
v.
Oldfield, supra
at 441,
Thus, the all-important question in Sumstine’s appeal is whether tacking based on the pendency of the informations is allowed in determining the last day for commencement of a defendant’s trial pursuant to the Nebraska speedy trial act.
We implicitly approved tacking in
State
v.
Batiste,
Similar to our conclusion in
Batiste, supra,
is the conclusion in
Cole v. State,
[T]he purpose of [the Kansas speedy trial statute] is to implement and define the constitutional guarantee of a speedy trial and the statute establishes certain maximum time limits within which a defendant must be brought to trial. Absent a showing of necessity, the state cannot dismiss a criminal action and then refile the identical charges against the same defendant and avoid the time limitations mandated by the statute.
State
v.
Cuezze, Houston & Faltico, supra
at 278, 589 P.2d at
*716
630. See, also,
U.S. v. Leone,
In light of the foregoing, we turn to Sumstine’s case and consider the two charges filed against her, namely, the initial arson information filed in 1989 and the subsequent arson information filed in 1990. The initial information charged Sumstine with second degree arson in intentionally setting fire to her apartment building on April 29, 1989, a violation of § 28-503(1). The subsequent information charged Sumstine with intentionally setting fire to the same building described in the initial information and setting that fire on the same date alleged in the initial information. However, since the charge in the subsequent information was first degree arson, the second information contained the additional allegation that “another
*717
person” was present in the apartment building when Sumstine allegedly set fire to the structure. See § 28-502(1). As far as the record reflects, all information concerning the arson charges was available to the State at the time the initial information was filed in 1989. Therefore, with the exception of the allegation concerning the presence of another person within the building set afire, both informations had the same allegation that Sumstine had intentionally set fire to her apartment building on the specific date mentioned in the informations. The identity of allegations for the arson offenses supplies a legal and rational nexus for the two informations against Sumstine. Moreover, in describing a lesser-included offense, we have stated: “To be a lesser-included offense, the elements of the lesser offense must be such that it is impossible to commit the greater offense without simultaneously committing the lesser offense.”
State
v.
Olsan,
The Supreme Court of Ohio, in
State v. Bonarrigo,
*718 The General Assembly has chosen to enforce the speedy trial statutes by providing an accused with a right to dismissal of charges upon timely motion, when not accorded trial within the statutory time. It was not the General Assembly’s sole purpose in enacting the speedy trial statutes to reward those accused of criminal conduct for a prosecutor’s lack of diligence. Concededly, an accused has a valid interest in, and an independent constitutional right to, a speedy trial. However, in construing the speedy trial statutes, this court also recognizes the public’s interests not only in the prompt adjudication of criminal cases, but also in obtaining convictions of persons who have committed criminal offenses against the state.
Consistent with these interests, we hold that, where a prosecutor obtains a felony indictment, based upon the same conduct as was a previously nolled, lesser-included misdemeanor charge, the time within which the accused shall be brought to trial pursuant to [the Ohio speedy trial act] consists of whatever residue remains from the 270-day period [required for trial in a felony case] after deducting the speedy trial time expended prior to the nolle prosequi. Such a holding adequately protects the accused’s statutory rights.
“[W]hen new and additional charges arise from the same facts as did the original charge and the state knew of such facts at the time of the initial indictment, the time within which trial is to begin on the additional charge is subject to the same statutory limitations period that is applied to the original charge.” [Quoting from State v. Clay,9 Ohio App. 3d 216 ,459 N.E.2d 609 (1983).]
Consistent with the legislative expression of policy in the Nebraska speedy trial act, see
State v. Lafler,
In Sumstine’s case, as we have already noted, on the basis of tacking the last day for commencement of Sumstine’s trial was April 4, 1990, in the absence of additional excludable time in computing the last day for commencement of trial. See § 29-1207. Since the State has not shown any excludable period, except the time utilized in Sumstine’s obtaining depositions and the interval when Sumstine was not, charged under any arson information, the State has failed to meet its burden and show that the speedy trial clock stopped at any time after restarting on January 8, 1990, when the State filed the second arson information against Sumstine. When the periods of pendency for the arson informations are tacked, or combined, it is clear that the State failed to bring Sumstine to trial within the 6-month period specified by § 29-1207. Sumstine is not required to prove prejudice to her as the result of the State’s failure to comply with the speedy trial act; hence, Sumstine is entitled to absolute discharge on the arson charge, a result dictated by § 29-1208. Consequently, Sumstine’s entitlement to absolute discharge requires that we reverse the district court’s judgment and remand this cause with direction to enter judgment dismissing the arson information against Sumstine. Under the circumstances, it is unnecessary to consider Sumstine’s second assignment of error concerning sufficiency of evidence to sustain her conviction.
*720 Notwithstanding that the prosecutor informed the district court that the practice outlined in Sumstine’s case is “done all of the time and done in the past,” which may have been the situation, and further stated that such course of action “will be done in the future,” our only comment is: “Not after today.”
Reversed and remanded with direction.