Decisions of the Nebraska Court of Appeals
52 22 NEBRASKA APPELLATE REPORTS
of [Ashley’s] compliance with the court orders and the
court-ordered services. And any party can always request
an early review if [Ashley] has decided to participate in
the rehabilitative plan and there needs to be a change in
the court order. I’m always willing to consider that. But
I think under these circumstances, we’ll just leave the
permanency hearing out there with the status report by
[DHHS] in 90 days.
Thus, Ashley had the power to regain her education rights
before the next scheduled review hearing by participating
in the rehabilitative services provided by DHHS and show-
ing that it would be in Nathaniel’s best interests for her to
regain them. See In re Interest of Clifford M. et al., 258 Neb.
800, 606 N.W.2d 743 (2000) (holding that order suspending
mother’s visitation was not final order because it did not pur-
port to terminate visitation and mother remained free to regain
visitation upon showing that visitation was in best interests of
her children).
Because the June 18, 2013, order was not a permanent dis-
position and was expected to disturb Ashley’s education rights
for a relatively short period of time, we conclude that a sub-
stantial right was not affected.
CONCLUSION
The juvenile court’s order temporarily suspending Ashley’s
educational rights on June 18, 2013, was not a final order
affecting a substantial right. Accordingly, we dismiss this
appeal for lack of jurisdiction.
Appeal dismissed.
State of Nebraska, appellee, v.
Joseph J. Fioramonti, appellant.
___ N.W.2d ___
Filed June 3, 2014. No. A-13-244.
1. Judgments: Speedy Trial: Appeal and Error. 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.
Decisions of the Nebraska Court of Appeals
STATE v. FIORAMONTI 53
Cite as 22 Neb. App. 52
2. Judgments: Appeal and Error. To the extent issues of law are presented, an
appellate court has an obligation to reach independent conclusions irrespective of
the determinations made by the court below.
3. Speedy Trial: Indictments and Informations: Time. Neb. Rev. Stat.
§ 29-1207(1) (Cum. Supp. 2012) requires that every person indicted or informed
against for any offense shall be brought to trial within 6 months, unless the
6 months are extended by any period to be excluded in computing the time
for trial.
4. Speedy Trial. Under Neb. Rev. Stat. § 29-1208 (Cum. Supp. 2012), if a defend
ant 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.
5. ____. To calculate the deadline for trial under the speedy trial statutes, a
court must exclude the day the State filed the information, count forward 6
months, back up 1 day, and then add any time excluded under Neb. Rev. Stat.
§ 29-1207(4) (Cum. Supp. 2012).
6. Speedy Trial: Motions for Continuance. The period of delay resulting from a
continuance granted at the request or with the consent of the defendant or his
counsel shall be excluded from the calculation of the time for trial.
7. Speedy Trial: Words and Phrases. The phrase “period of delay” in Neb. Rev.
Stat. § 29-1207(4) (Cum. Supp. 2012) refers to a specified period of time in
which trial did not commence.
8. Speedy Trial: Proof. Under Nebraska’s speedy trial act, it is unnecessary to
show factually that delay actually prevented commencement of trial, that is, a
demonstration of a cause-and-effect relationship between a condemned delay and
failure to commence a defendant’s trial within 6 months as prescribed by Neb.
Rev. Stat. § 29-1207(2) (Cum. Supp. 2012).
9. Appeal and Error. An appellate court may, at its discretion, discuss issues
unnecessary to the disposition of an appeal where those issues are likely to recur
during further proceedings.
10. Speedy Trial: Waiver. A defendant waives his or her statutory right to a speedy
trial when the period of delay resulting from a continuance granted at the request
of the defendant or his or her counsel extends the trial date beyond the statutory
6-month period.
11. Speedy Trial: Waiver: Appeal and Error. A defendant’s motion to discharge
based on statutory speedy trial grounds will be deemed to be a waiver of that
right under Neb. Rev. Stat. § 29-1207(4)(b) (Cum. Supp. 2012) where (1) the
filing of such motion results in the continuance of a timely trial to a date outside
the statutory 6-month period, as calculated on the date the motion to discharge
was filed, (2) discharge is denied, and (3) that denial is affirmed on appeal.
12. Constitutional Law: Speedy Trial: Statutes. The constitutional right to a
speedy trial and the statutory right to a speedy trial are expressly distinct from
each other.
13. Appeal and Error. In order to be considered by an appellate court, an alleged
error must be both specifically assigned and specifically argued in the brief of the
party asserting the error.
Decisions of the Nebraska Court of Appeals
54 22 NEBRASKA APPELLATE REPORTS
Appeal from the District Court for Cheyenne County: Derek
C. Weimer, Judge. Affirmed.
Stacy C. Nossaman-Petitt, of Nossaman Petitt Law Firm,
P.C., for appellant.
Jon Bruning, Attorney General, and Kimberly A. Klein for
appellee.
Inbody, Chief Judge, and Pirtle and Riedmann, Judges.
Riedmann, Judge.
INTRODUCTION
Joseph J. Fioramonti appeals from the decision of the dis-
trict court for Cheyenne County denying his motion to dismiss
on speedy trial grounds. We find that the district court did not
err in determining that his motion was premature. Accordingly,
we affirm.
BACKGROUND
On September 10, 2012, Fioramonti was charged by infor-
mation with possession of marijuana with intent to deliver,
possession of marijuana weighing more than 1 pound, and
possession of a controlled substance without tax stamps. On
September 26, Fioramonti filed a motion for statutory discov-
ery and a motion for return of personal property. A hearing
on these motions was originally scheduled for October 12,
but the district court granted a continuance to October 16
on the State’s motion. Although the hearing is not contained
in the record, the district court’s journal entry indicates that
Fioramonti had no objection to the State’s request for continu-
ance. On October 16, the district court ruled on Fioramonti’s
motion for statutory discovery and motion for return of per-
sonal property.
The matter was set for trial to begin on January 28, 2013.
On December 21, 2012, the State filed a motion to continue the
trial from January 28 to January 31, 2013, due to the unavail-
ability of one of the State’s witnesses. The State did not iden-
tify the unavailable witness or offer any evidence regarding the
materiality of such witness. The following exchange took place
during the hearing:
Decisions of the Nebraska Court of Appeals
STATE v. FIORAMONTI 55
Cite as 22 Neb. App. 52
THE COURT: Okay, sounds good. Then let’s talk about
the motion to continue. Maybe the easiest way to start on
that is to ask you if you have any objection to that?
[Defense counsel]: Your honor, we don’t have an objec-
tion as long as the time runs against the State. We have
no objection. I don’t think this case has been pending that
long so it shouldn’t be an issue.
THE COURT: All right, I don’t think so either.
The district court granted the State’s motion for continuance
without indicating whether the delay would run against the
speedy trial clock. The matter was then rescheduled for trial to
occur on March 20, 21, and 22.
During a pretrial conference on March 6, 2013, Fioramonti
made an oral motion to use depositions due to unavailabil-
ity of witnesses to appear at trial. Fioramonti filed a written
motion the following day, and a hearing was held on the
matter on March 8, at which time the court orally denied
the motion.
On March 18, 2013, Fioramonti filed a motion to dismiss
the case on speedy trial grounds, alleging that more than 6
months had elapsed since the date of filing of the information.
The trial court entered an order denying the motion to dismiss
on March 19. It found that the motion was premature because
23 days were excludable from the speedy trial calculation
as follows: (1) 20 days during the pendency of Fioramonti’s
motion for statutory discovery, motion for return of personal
property, and motion to withdraw, which motions were filed
on September 26 and disposed of on October 16, and (2)
3 days during the pendency of Fioramonti’s motion to use
depositions, which motion was made orally on March 6 and
denied on March 8. The district court did not address whether
the delay resulting from the State’s motion to continue the
trial was excludable under the speedy trial statutes. It denied
Fioramonti’s motion to dismiss based on its finding that the
speedy trial clock had not yet expired, but it did not make a
finding regarding the number of days remaining on the speedy
trial clock.
Fioramonti timely appeals.
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56 22 NEBRASKA APPELLATE REPORTS
ASSIGNMENTS OF ERROR
Fioramonti assigns that the district court erred in finding (1)
that his discovery motion tolled the speedy trial clock and (2)
that less than 6 months had elapsed since the information was
filed. Because these assignments of error are related, we will
address them together.
STANDARD OF REVIEW
[1,2] 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. Mortensen, 19 Neb. App. 220, 809
N.W.2d 793 (2011) (Mortensen I). However, to the extent
issues of law are presented, an appellate court has an obligation
to reach independent conclusions irrespective of the determina-
tions made by the court below. Id.
ANALYSIS
Statutory Right to Speedy Trial.
[3,4] Neb. Rev. Stat. § 29-1207(1) (Cum. Supp. 2012)
requires that every person indicted or informed against for any
offense shall be brought to trial within 6 months, unless the
6 months are extended by any period to be excluded in com-
puting the time for trial. Mortensen I. Under Neb. Rev. Stat.
§ 29-1208 (Cum. Supp. 2012), 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 abso-
lute discharge. Mortensen I.
[5] The rule in Nebraska is clear that to calculate the
deadline for trial under the speedy trial statutes, a court must
exclude the day the State filed the information, count forward 6
months, back up 1 day, and then add any time excluded under
§ 29-1207(4). State v. Mortensen, 287 Neb. 158, 841 N.W.2d
393 (2014) (Mortensen II). Here, the information in this matter
was filed on September 10, 2012. Thus, if there were no time
periods excluded under § 29-1207(4), the last day on which the
State could have brought Fioramonti to trial would have been
March 10, 2013.
Decisions of the Nebraska Court of Appeals
STATE v. FIORAMONTI 57
Cite as 22 Neb. App. 52
Under § 29-1207(4)(a), “the time from filing until final dis-
position” of the defendant’s pretrial motions is excluded from
the speedy trial calculation. The excludable period commences
on the day immediately after the filing of a defend nt’s pretrial
a
motion, and final disposition occurs on the date the motion is
granted or denied. See State v. Williams, 277 Neb. 133, 761
N.W.2d 514 (2009).
[6] We agree with the district court’s conclusion that 20
days are excludable from the speedy trial calculation due to
Fioramonti’s pretrial motions that were filed on September
26, 2012, and disposed of on October 16. Although the hear-
ing on these motions was continued from October 11 to
October 16 at the State’s request, the record reflects that
Fioramonti made no objection to the continuance. Pursuant
to § 29-1207(4)(b), the period of delay resulting from a con-
tinuance granted at the request or with the consent of the
defendnt or his counsel shall be excluded from the calcula-
a
tion of the time for trial. Mortensen I. Thus, the entire 20 days
during which these motions were pending, including the 4
days attributable to the State’s request for continuance, were
properly excluded. See State v. Hayes, 10 Neb. App. 833, 639
N.W.2d 418 (2002) (State’s continuance was properly excluded
under § 29-1207(4)(a), because it fell within timeframe which
was already excluded by pendency of defendant’s motion
to suppress).
Fioramonti argues that the filing of his motions did not
cause a “delay,” because they were filed and resolved while
he was waiting to be arraigned, and that his arraignment date
was unaffected by these motions. Although § 29-1207(4)(a)
uses the language “period of delay” when identifying what
time is excludable, the Nebraska Supreme Court has held
that this language is synonymous with the phrase “period of
time.” See State v. Feldhacker, 267 Neb. 145, 672 N.W.2d
627 (2004).
In State v. Feldhacker, 11 Neb. App. 608, 657 N.W.2d 655
(2003), modified on denial of rehearing 11 Neb. App. 872,
663 N.W.2d 143, the defendant requested transcripts of vari-
ous hearings. In calculating the time to be excluded for speedy
Decisions of the Nebraska Court of Appeals
58 22 NEBRASKA APPELLATE REPORTS
trial purposes, the district court excluded the amount of time
from the date the praecipe for the transcripts was filed until the
transcripts were complete. We reversed, stating that there was
no “delay.” We said:
“Here, the record shows nothing but a ‘period of time’ of
22 days as opposed to a ‘period of delay’ between prae-
cipe and completion of transcript. There was no showing
by the State that this period of time was outside the norm
for preparation of such a record or that the court reporters
were in any way delayed. . . .”
State v. Feldhacker, 11 Neb. App. at 874, 663 N.W.2d at 145.
[7] On further review, the Supreme Court reversed our deci-
sion and stated:
We agree with the State’s argument on further review
that there is no meaningful distinction between the
phrases “period of time” and “period of delay.” Although
§ 29-1207(4) uses the phrase “period of delay,” any such
period is necessarily described and quantified in terms
of time. Thus, in interpreting and applying the speedy
trial act, we have used the words “time” and “delay”
interchangeably.
State v. Feldhacker, 267 Neb. at 154-55, 672 N.W.2d at 634.
[8] Likewise, in State v. Lafler, 225 Neb. 362, 367, 405
N.W.2d 576, 581 (1987), abrogated on other grounds, State v.
Oldfield, 236 Neb. 433, 461 N.W.2d 554 (1990), the Nebraska
Supreme Court stated that “[u]nder Nebraska’s speedy trial
act, it is unnecessary to show factually that delay actually
prevented commencement of trial, that is, a demonstration of
a cause-and-effect relationship between a condemned delay
and failure to commence a defendant’s trial within 6 months
as prescribed by § 29-1207(2).” In reaching this decision, the
court relied upon United States v. Velasquez, 802 F.2d 104, 105
(4th Cir. 1986), which stated that “the ‘causation’ argument has
been rejected by every circuit that has considered it.”
Given the above, it was not necessary that Fioramonti’s
pretrial motion actually caused a delay in the trial; rather,
§ 29-1207(4)(a) requires the exclusion of all time from the
filing of a defendant’s pretrial motion until final disposition
of that motion. Therefore, the district court did not err in
Decisions of the Nebraska Court of Appeals
STATE v. FIORAMONTI 59
Cite as 22 Neb. App. 52
excluding the amount of time attributable to Fioramonti’s pre-
trial motions.
The district court was also correct in excluding the period
of time during the pendency of Fioramonti’s motion to use
depositions; however, we find plain error in the district court’s
determination that the excludable days were March 6, 7,
and 8, 2013. The district court erred in excluding March 6,
because the excludable period commences on the day immedi-
ately after the filing of a defendant’s pretrial motion. Because
Fioramonti made his motion orally on March 6, the exclud-
able period began on March 7. See State v. Shipler, 17 Neb.
App. 66, 758 N.W.2d 41 (2008) (indicating that excludable
period begins upon oral motion, even if written motion is
subsequently filed). The excludable period ended when the
district court denied the motion on March 8, and thus, the
total excludable period for this motion was only 2 days, rather
than 3 days.
Given our finding that these 22 days are excludable under
§ 29-1207(4), the date upon which the State could have brought
Fioramonti to trial was extended from March 10 to April 1,
2013. The date on which a court considers whether a defend
ant’s right to speedy trial has been violated is the date on
which a defendant files his or her motion for discharge. State
v. Miller, 9 Neb. App. 617, 616 N.W.2d 75 (2000). Because
Fioramonti’s motion to dismiss was filed on March 18, it was
premature. Thus, we affirm the district court’s order denying
Fioramonti’s motion to dismiss.
[9] However, our analysis does not end there. The State con-
tends that an additional period of time should be excluded from
the speedy trial clock due to Fioramonti’s failure to “uncondi-
tionally” object to the State’s motion to continue. An appellate
court may, at its discretion, discuss issues unnecessary to the
disposition of an appeal where those issues are likely to recur
during further proceedings. State v. Craig, 15 Neb. App. 836,
739 N.W.2d 206 (2007).
In light of the Nebraska Supreme Court’s recent decision
in Mortensen II, we determine that regardless of whether this
additional time period is excluded, Fioramonti permanently
waived his statutory speedy trial right.
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60 22 NEBRASKA APPELLATE REPORTS
[10,11] In Mortensen II, the Nebraska Supreme Court
analyzed the recent amendment to § 29-1207(4)(b), which
became operative on July 15, 2010. Section 29-1207(4)(b)
provides a waiver of a defendant’s statutory right to a speedy
trial “when the period of delay resulting from a continuance
granted at the request of the defendant or his or her counsel
extends the trial date beyond the statutory six-month period.”
The Supreme Court construed the statute to include not only
delays caused by traditional continuances, but also delays
resulting from the filing of motions to discharge. It held
as follows:
We hold that a defendant’s motion to discharge based
on statutory speedy trial grounds will be deemed to be
a waiver of that right under § 29-1207(4)(b) where (1)
the filing of such motion results in the continuance of
a timely trial to a date outside the statutory 6-month
period, as calculated on the date the motion to discharge
was filed, (2) discharge is denied, and (3) that denial is
affirmed on appeal.
Mortensen II, 287 Neb. at 169-70, 841 N.W.2d at 402-03.
In determining whether Fioramonti permanently waived his
right to a speedy trial, we first determine whether the filing of
his motion to dismiss resulted in the continuance of a timely
trial to a date outside the statutory 6-month period.
As previously discussed, 22 days were excludable from the
speedy trial clock due to Fioramonti’s pretrial motions, thereby
extending the permissible trial date to April 1, 2013. However,
the State argues on appeal that the delay attributable to the con-
tinuance of trial from January 28 to March 20 should also be
excluded from the speedy trial calculation, because Fioramonti
did not object to the State’s request for such continuance.
The record reflects that Fioramonti had no objection to the
continuance, “as long as the time runs against the State.” The
State argues that a conditional objection is not permitted under
Nebraska law and that therefore, Fioramonti did not object to
the continuance.
We need not decide this issue because, regardless of whether
the period attributable to the State’s request for continuance
is excluded from the speedy trial calculation, Fioramonti’s
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Cite as 22 Neb. App. 52
motion to dismiss continued his trial far beyond the 6-month
period. In other words, even if we were to accept the State’s
argument and exclude the delay attributable to the State’s
request for continuance, it would add approximately 3 months
to the speedy trial clock, extending the date upon which
the State could have brought him to trial to July 2013.
Fioramonti’s motion to dismiss and the subsequent appeal
have resulted in a continuance of trial from a date within
the statutory 6-month period to a date far beyond July 2013.
Thus, pursuant to Mortensen II, Fioramonti has permanently
waived his statutory right to a speedy trial. The district court
is directed to set the matter for trial once it reacquires jurisdic-
tion over the cause.
Constitutional Right to Speedy Trial.
[12,13] Fioramonti also argues in his brief that an accused
is constitutionally guaranteed a right to a fair and speedy trial.
The constitutional right to a speedy trial and the statutory
right to a speedy trial are expressly distinct from each other.
See State v. Kula, 254 Neb. 962, 579 N.W.2d 541 (1998).
However, Fioramonti does not specifically assign as error that
he was denied his constitutional right to a speedy trial. In order
to be considered by an appellate court, an alleged error must
be both specifically assigned and specifically argued in the
brief of the party asserting the error. State v. Smith, 286 Neb.
856, 839 N.W.2d 333 (2013). Accordingly, we do not address
Fioramonti’s constitutional argument.
CONCLUSION
The district court did not err in denying Fioramonti’s motion
to dismiss on speedy trial grounds. Pursuant to Mortensen II,
we conclude that Fioramonti has permanently waived his statu-
tory right to a speedy trial. The district court is directed to set a
date to bring Fioramonti to trial once it reacquires jurisdiction
over the cause.
Affirmed.