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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. RIESSLAND
Cite as 310 Neb. 262
State of Nebraska, appellee, v.
Nicole M. Riessland, appellant.
Filed October 1, 2021. No. S-20-884.
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.
2. Statutes: Appeal and Error. Statutory interpretation presents a ques-
tion of law, for which an appellate court has an obligation to reach an
independent conclusion irrespective of the determination made by the
court below.
3. Speedy Trial: Final Orders: Appeal and Error. An order denying
a defendant’s nonfrivolous motion for absolute discharge on speedy
trial grounds is a ruling affecting a substantial right in a special pro-
ceeding and is therefore final and appealable under Neb. Rev. Stat.
§ 25-1902(1)(b) (Cum. Supp. 2020).
4. Speedy Trial: Waiver. The statutory right to a speedy trial is not unlim-
ited and can be waived.
5. Speedy Trial: Waiver: Motions for Continuance. A defendant perma-
nently waives his or her statutory speedy trial rights under Neb. Rev.
Stat. § 29-1207(4)(b) (Reissue 2016) when an ultimately unsuccessful
motion for discharge results in the continuance of a timely trial to a
date outside the statutory 6-month period, as calculated on the date the
motion for discharge was filed.
Appeal from the District Court for Buffalo County: John H.
Marsh, Judge. Affirmed.
Brandon J. Dugan, Deputy Buffalo County Public Defender,
for appellant.
Douglas J. Peterson, Attorney General, and Kimberly A.
Klein for appellee.
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. RIESSLAND
Cite as 310 Neb. 262
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Papik, J.
After the district court overruled Nicole M. Riessland’s
motion for discharge on statutory speedy trial grounds, finding
that there remained 35 days in which the State could timely
bring the matter to trial, Riessland did not appeal. Instead,
Riessland waited 36 days and then filed a second motion for
discharge. The district court did not grant the second motion,
finding that, by filing her first motion, Riessland permanently
waived her statutory speedy trial rights. This time, Riessland
appealed.
Riessland concedes that under State v. Mortensen, 287 Neb.
158, 841 N.W.2d 393 (2014), a defendant can permanently
waive his or her statutory speedy trial rights by filing an unsuc-
cessful motion for discharge, but contends that a defendant can
do so only if he or she also pursues an appeal. We disagree. We
hold that a defendant permanently waives his or her statutory
speedy trial rights when an ultimately unsuccessful motion for
discharge results in the continuance of a timely trial to a date
outside the statutory 6-month period, as calculated on the date
the motion for discharge was filed. And because that happened
here, we affirm.
BACKGROUND
First Motion for Discharge.
Riessland was charged with a crime in August 2019. Trial
was eventually scheduled for July 20, 2020. Two weeks before
the trial, however, Riessland filed a motion for discharge,
alleging that the State had failed to try her within the time
required by Nebraska’s speedy trial statute. See Neb. Rev. Stat.
§§ 29-1207 and 29-1208 (Reissue 2016).
The district court held a hearing on the motion for dis-
charge on July 13, 2020, and overruled it on August 13. In
its order, the district court found that between the filing of
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. RIESSLAND
Cite as 310 Neb. 262
charges and Riessland’s motion for discharge, there were
several periods of excludable time under § 29-1207(4). After
adding the excludable time to the 6-month speedy trial period
set forth in § 29-1207(1), the district court determined that,
at the time Riessland filed her motion for discharge, the last
day the State could have timely brought Riessland to trial was
August 10.
The district court entered an order setting the matter for
a jury trial to begin on September 21, 2020. Riessland did
not appeal the district court’s denial of her first motion for
discharge.
Second Motion for Discharge.
On September 18, 2020, Riessland filed a second motion
for discharge. Again, Riessland contended that she was entitled
to discharge because the State had failed to bring her to trial
within the time required by the speedy trial statute.
In response to Riessland’s second motion for discharge, the
State filed a document styled as a “Motion to Quash Motion
for Discharge.” In it, the State argued that under Mortensen,
supra, Riessland had permanently waived her statutory right to
a speedy trial, because her first motion for discharge delayed
trial beyond the 6-month statutory deadline. At the conclusion
of the hearing on the parties’ respective motions, the district
court stated that, because Riessland’s first motion for discharge
“took [trial] outside the six months,” it would sustain the
State’s motion. The district court also entered a written order
stating that it had sustained the State’s motion and set the mat-
ter for a jury trial.
Riessland appealed, and we granted the State’s motion
to bypass.
ASSIGNMENT OF ERROR
Riessland assigns that the district court erred by sustain-
ing the State’s motion to quash and denying her motion for
discharge.
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. RIESSLAND
Cite as 310 Neb. 262
STANDARD OF REVIEW
[1] 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. Beitel, 296 Neb. 781, 895 N.W.2d
710 (2017).
[2] Statutory interpretation presents a question of law, for
which an appellate court has an obligation to reach an indepen-
dent conclusion irrespective of the determination made by the
court below. Id.
ANALYSIS
Appellate Jurisdiction.
[3] Before we consider Riessland’s speedy trial argument,
we outline our reasoning as to why we have jurisdiction to do
so. We have held on a number of occasions that an order deny-
ing a defendant’s nonfrivolous motion for absolute discharge
on speedy trial grounds is a ruling affecting a substantial right
in a special proceeding and is therefore final and appealable
under Neb. Rev. Stat. § 25-1902(1)(b) (Cum. Supp. 2020).
See, e.g., State v. Chapman, 307 Neb. 443, 949 N.W.2d 490
(2020). Here, however, the district court did not expressly deny
Riessland’s motion for discharge. Rather, its order purported to
grant the State’s “Motion to Quash Motion for Discharge.”
We note that the State’s motion appears to have been at
least unnecessary, if not unauthorized. We have concluded on
a number of occasions that where a criminal procedure is not
authorized by statute, it is unavailable in a criminal proceed-
ing. State v. Rodriguez-Torres, 275 Neb. 363, 746 N.W.2d 686
(2008). A Nebraska statute authorizes the use of motions to
quash to challenge “defects in the form of the indictment or
in the manner in which an offense is charged.” See Neb. Rev.
Stat. § 29-1808 (Reissue 2016). Our law also recognizes that
a party may file a motion to quash a subpoena. See, e.g., State
v. Rice, 214 Neb. 518, 335 N.W.2d 269 (1983). We are not
aware, however, of any authority suggesting that the State can
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. RIESSLAND
Cite as 310 Neb. 262
or must file a motion to quash a defendant’s motion for abso-
lute discharge if it believes the defendant has waived his or her
statutory speedy trial rights. It would appear that all the State
had to do to present its argument that Riessland had waived her
speedy trial rights was to advance that argument in opposition
to her motion for absolute discharge.
Even though the district court did not expressly rule on
Riessland’s motion for absolute discharge and instead sus-
tained the State’s “Motion to Quash Motion for Discharge,”
we conclude that we have appellate jurisdiction. By granting
the State’s motion and scheduling the case for trial, the district
court made clear that it had determined that Riessland waived
her statutory speedy trial rights and was not entitled to absolute
discharge. We thus agree with both Riessland and the State
that the district court implicitly overruled Riessland’s motion
for discharge. Because the district court overruled Riessland’s
motion for discharge and we find that Riessland’s motion was
not frivolous, we have jurisdiction to consider her appeal. See
Chapman, supra.
Speedy Trial Waiver.
[4] The statutory right to a speedy trial is not unlimited and
can be waived. State v. Mortensen, 287 Neb. 158, 841 N.W.2d
393 (2014). This case turns entirely on whether Riessland
waived her statutory speedy trial rights by filing her first
motion for discharge. Relevant to that question, the speedy
trial statute has an express waiver provision in § 29-1207(4)(b),
which provides in part: “A defendant is deemed to have waived
his or her right to speedy trial when the period of delay result-
ing 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.”
Interpreting this language, we have said, “[I]f a defendant
requests a continuance that moves a trial date which has been
set within the statutory 6-month period to a date that is out-
side the 6-month period, that request constitutes a permanent
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. RIESSLAND
Cite as 310 Neb. 262
waiver of the statutory speedy trial right.” Mortensen, 287 Neb.
at 165, 841 N.W.2d at 400. At issue in this appeal is whether
Riessland, by filing her first motion for discharge, requested
a continuance that moved a trial date set within the statutory
6-month period to a date outside that period.
At the time Riessland filed her first motion for discharge,
she did not expressly request a continuance of the scheduled
trial. In Mortensen, however, we concluded that, at least in
some circumstances, “[i]mplicit within a motion to discharge
is a request to continue the proceeding.” 287 Neb. at 166, 841
N.W.2d at 400. We reasoned that this was so, because a court
must resolve a motion for discharge before the trial can begin.
As we explained, if a motion for discharge “cannot be finally
resolved without postponing trial, the motion serves no purpose
unless it acts as a request for a continuance.” Id. at 166, 841
N.W.2d at 401.
Riessland does not quarrel with our conclusion in Mortensen
that a motion for discharge can function as an implicit motion
for continuance capable of permanently waiving a defendant’s
statutory speedy trial rights under § 29-1207(4)(b). She instead
contends that a motion for discharge functions as a motion
for continuance for purposes of § 29-1207(4)(b) only if the
trial court’s denial of the motion for discharge is affirmed
on appeal. And because Riessland did not appeal the district
court’s denial of her first motion for discharge, she contends
that she did not waive her speedy trial rights.
Our opinion in Mortensen does contain some language
about how the appeal of an order denying a statutory speedy
trial motion for discharge will result in a continuance of the
proceedings until the appeal is resolved. 287 Neb. at 166,
841 N.W.2d at 400 (“[b]ecause an order denying discharge
is appealable and a notice of appeal filed from the denial of
discharge divests the trial court of jurisdiction, the motion for
discharge has the immediate effect of continuing the proceed-
ings”). We also made reference to an appeal at the conclusion
of our opinion, when we said the following:
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. RIESSLAND
Cite as 310 Neb. 262
[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.
State v. Mortenson, 287 Neb. 158, 169-70, 841 N.W.2d 393,
402-03 (2014) (emphasis supplied).
This language from Mortensen does not persuade us that a
motion for discharge functions as a continuance for purposes
of § 29-1207(4)(b) only when the defendant appeals the order
denying the motion for discharge and that order is affirmed on
appeal. The defendant in Mortensen appealed orders denying
motions to discharge, and so we discussed the effect an appeal
can have in that case. But that language merely supplemented
our primary conclusion that, because a court must resolve a
motion for discharge before trial can commence, such a motion
carries with it an additional, implicit motion to continue trial
to the extent necessary to resolve the motion for discharge.
That additional, implicit motion to continue is no less pres-
ent if the defendant later decides not to appeal the denial of a
motion for discharge. And just as a motion for discharge that
is followed by an appeal can require that trial be postponed
until the appeal is resolved, so too can a motion for discharge
that is not appealed require that trial be postponed until the
motion is resolved. This case illustrates the point: Riessland’s
trial was scheduled to begin on July 20, 2020, but did not start
on that date, because her motion for discharge had not yet
been resolved.
In response, Riessland argues that our focus in Mortensen
was on the extended delay caused by the defendant’s appeals
of orders denying his motions for discharge. She contends
that, because she did not appeal the district court’s order
denying her first motion for discharge, the delay in her case
is not comparable to that in Mortensen. We do not dispute
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. RIESSLAND
Cite as 310 Neb. 262
that the delay caused by Riessland’s first motion for discharge
was significantly shorter than the delay in Mortensen. Nor
do we dispute the general proposition that if a defendant
appeals an order denying a motion for discharge, it will result
in more delay than would occur if no appeal is filed. But
§ 29-1207(4)(b) does not leave it to courts to determine on
their own whether a delay was sufficiently long to trigger a
waiver. The statute instead directs that waiver results “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.” § 29-1207(4)(b).
The text of the statute does not differentiate between contin
uances that extend the trial date well beyond the 6-month
deadline and those that extend the trial date barely past that
mark; either will result in a waiver.
Riessland fares no better with her alternative argument. She
suggests that if a motion for discharge can result in the per-
manent waiver of a defendant’s speedy trial rights even if the
defendant does not appeal the denial of that motion, the rule
we adopted in State v. Williams, 277 Neb. 133, 761 N.W.2d
514 (2009), serves no purpose. In Williams, we required trial
courts to specifically set forth, among other things, “the num-
ber of days remaining in which the defendant may be brought
to trial after taking into consideration all excludable periods.”
277 Neb. at 143-44, 761 N.W.2d at 524. But as we explained
in State v. Lintz, 298 Neb. 103, 107, 902 N.W.2d 683, 687
(2017), the findings set forth in Williams are required “to
facilitate appellate review.” The findings continue to serve
that purpose even if unsuccessful motions for discharge will
generally result in the permanent waiver of statutory speedy
trial rights.
[5] For these reasons, we see no principled basis upon
which we could find, as Riessland urges, that an unsuccessful
motion for discharge waives a defendant’s statutory speedy
trial rights only if the order denying the motion for discharge
is appealed. To give effect to the language of § 29-1207(4)(b)
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. RIESSLAND
Cite as 310 Neb. 262
and our conclusion in Mortensen that a motion for discharge
carries with it an implicit request to continue trial to the extent
necessary to resolve the motion for discharge, we hold that a
defendant permanently waives his or her statutory speedy trial
rights when an ultimately unsuccessful motion for discharge
results in the continuance of a timely trial to a date outside the
statutory 6-month period, as calculated on the date the motion
for discharge was filed.
Application of our holding to the facts of this case is straight-
forward. Riessland’s ultimately unsuccessful first motion for
discharge required the district court to continue the trial sched-
uled for July 20, 2020. July 20 was within the statutory 6-month
period. As the district court found in its order on Riessland’s
first motion for discharge, as of the date Riessland filed her
motion, the State could have timely brought her to trial by
August 10. And because the district court did not decide the
first motion for discharge until August 13, trial was continued
to a date outside the statutory 6-month period, as calculated
on the date the motion for discharge was filed. Accordingly,
Riessland permanently waived her statutory speedy trial rights
under § 29-1207(4)(b). Because she had no statutory speedy
trial rights to assert when she filed her second motion for dis-
charge, the district court did not err by overruling it.
CONCLUSION
For the foregoing reasons, we conclude that Riessland’s first
motion for discharge permanently waived her statutory speedy
trial rights and that thus, the district court did not err in over-
ruling her second motion for discharge.
Affirmed.