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03/11/2022 08:06 AM CST
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Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. BIXBY
Cite as 311 Neb. 110
State of Nebraska, appellant, v.
Clay Younglove Bixby, appellee.
___ N.W.2d ___
Filed March 11, 2022. Nos. S-21-091, S-21-147.
1. Judgments: Speedy Trial: Appeal and Error. Generally, 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. Judgments: Statutes: Appeal and Error. To the extent an appeal calls
for statutory interpretation or presents questions of law, an appellate
court must reach an independent conclusion irrespective of the determi-
nation made by the court below.
Appeals from the District Court for Grant County: Travis
P. O’Gorman, Judge. Reversed and remanded for further
proceedings.
Douglas J. Peterson, Attorney General, James D. Smith,
Senior Assistant Attorney General, and Terry Curtiss, Grant
County Attorney, for appellant.
Bell Island, of Island Law Office, P.C., L.L.O., for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Heavican, C.J.
I. INTRODUCTION
After a mistrial, Clay Younglove Bixby filed a plea in bar
to prevent the State from retrying its case against him. Bixby’s
plea in bar was denied by the district court. That denial was
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STATE v. BIXBY
Cite as 311 Neb. 110
affirmed by the Nebraska Court of Appeals, 1 and we denied
Bixby’s petition for further review.
Following this court’s denial of the petition for further
review, the Court of Appeals issued a mandate, which was
spread on the docket of the district court in August 2020. A
new trial was scheduled for January 2021. One week before
trial, Bixby filed a motion for absolute discharge, which was
granted after the district court found that the recalculated
speedy trial deadline was December 29, 2020. The State
appealed; we granted the State’s petition to bypass the Court
of Appeals.
Upon review, we find that Bixby’s motion for absolute dis-
charge was premature, that time remained on his speedy trial
clock, and that the district court’s order granting such motion
was clearly erroneous. We therefore reverse the decision of the
district court and remand the cause for further proceedings.
II. FACTUAL BACKGROUND
On May 15, 2018, Bixby was charged by information with
driving under the influence, possession of an open container,
and driving on the shoulder of a highway. Bixby went to trial
on these charges on October 24. At trial, the prosecutor solic-
ited improper testimony. Bixby sought a mistrial, which was
granted on October 30.
On November 19, 2018, Bixby filed a plea in bar arguing
that the State should not be able to retry the case. This plea in
bar was denied February 1, 2019, and a new trial was set for
March 11. However, on March 4, Bixby filed a notice of appeal
challenging the denial of his plea in bar.
On March 3, 2020, the Court of Appeals affirmed the
denial of Bixby’s plea in bar. 2 Bixby filed a petition for
further review, which was denied by this court on April 29.
1
See State v. Bixby, No. A-19-237, 2020 WL 1026734 (Neb. App. Mar. 3,
2020) (selected for posting to court website).
2
See id.
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Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. BIXBY
Cite as 311 Neb. 110
Accordingly, a mandate was issued by the Court of Appeals
in May, and an order spreading the mandate was entered by
the district court in August. At a hearing on October 30, a new
trial was set for January 26, 2021. On January 20, Bixby filed
a motion for absolute discharge, asserting that the State had
not complied with statutory speedy trial requirements pursuant
to Neb. Rev. Stat. § 29-1207 et seq. (Reissue 2016).
The district court found that Bixby’s mistrial had trig-
gered a new 6-month deadline, meaning Bixby’s trial should
have occurred by April 24, 2019, unless excludable time
applied. The court determined that there was a total of 615
excludable days to be charged to Bixby for his interlocutory
appeals: 74 days were excluded between November 19, 2018,
and February 1, 2019, due to the plea in bar filed by Bixby,
and 541 days were excluded between March 4, 2019, and
August 26, 2020, due to Bixby’s appeal regarding the denied
plea in bar.
In consideration of these 615 excludable days, the district
court determined that Bixby’s new speedy trial deadline was
December 29, 2020. Because the January 26, 2021, trial date
fell beyond that deadline, the court granted Bixby’s motion
for absolute discharge and dismissed the case on January
21, 2021.
The State perfected an appeal and then petitioned this court
to bypass the Court of Appeals. We granted the State’s petition
to bypass on November 8, 2021, at which time this case was
moved to our docket.
III. ASSIGNMENT OF ERROR
On appeal, the State assigns that the district court erred in
sustaining Bixby’s motion for a speedy trial absolute discharge
and dismissing the case.
IV. STANDARD OF REVIEW
[1] Generally, a trial court’s determination as to whether
charges should be dismissed on speedy trial grounds is a
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311 Nebraska Reports
STATE v. BIXBY
Cite as 311 Neb. 110
factual question which will be affirmed on appeal unless
clearly erroneous. 3
[2] To the extent an appeal calls for statutory interpretation
or presents questions of law, an appellate court must reach an
independent conclusion irrespective of the determination made
by the court below. 4
V. ANALYSIS
1. Jurisdiction and Appeal Procedure
As a preliminary matter, the State in its brief sets out the two
pathways it utilized to raise this appeal. First, the State filed
an appeal under case No. A-21-147, relying on Neb. Rev. Stat.
§§ 24-204 (Reissue 2016) and 25-1912 (Cum. Supp. 2020).
This appeal was filed within 30 days of the district court’s dis-
missal order, before the State’s application to docket an appeal
had been confirmed. The State later filed and perfected an
appeal under case No. A-21-091, in accordance with Neb. Rev.
Stat. § 29-2315.01 (Cum. Supp. 2020).
Because the State perfected its appeal under § 29-2315.01,
we need not address the parties’ arguments regarding jurisdic-
tion under § 25-1912. This court has jurisdiction to hear this
appeal pursuant to § 29-2315.01. For completeness, we note
that this appeal does not raise issues of double jeopardy pursu-
ant to Neb. Rev. Stat. § 29-2316 (Reissue 2016). 5
2. No Final Disposition
On appeal, the State asserts that Bixby’s plea in bar tolled
the speedy trial clock from the first date of filing until the
mandate on remand after Bixby’s interlocutory appeal. The
State points to § 29-1207(4)(a), which states that “the time
from filing until final disposition of pretrial motions of the
3
State v. Liming, 306 Neb. 475, 945 N.W.2d 882 (2020).
4
State v. Baker, 264 Neb. 867, 652 N.W.2d 612 (2002). See State v. Liming,
supra note 3.
5
See, State v. Thalken, 299 Neb. 857, 911 N.W.2d 562 (2018); State v.
Muhannad, 286 Neb. 567, 837 N.W.2d 792 (2013).
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STATE v. BIXBY
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defendant” shall be excluded in computing the time for trial.
Pursuant to this language, the State asserts that the district
court’s speedy trial calculations were erroneous: it attributed
the 31 days between the denial of Bixby’s plea in bar and the
filing of his interlocutory appeal from that denial to the State,
even though Bixby’s interlocutory appeal meant the plea in bar
did not yet have a “final disposition.”
(a) Appellate Review
Bixby asserts that this court cannot consider the State’s
argument on this matter, as the State presented this argument
for the first time on appeal and did not make the argument in
front of the district court when it was deciding Bixby’s motion
to discharge. Bixby points to our recent opinion in State v.
Jennings, 6 where we stated:
Before the county court, the State opposed [the defend
ant’s] motion for absolute discharge on just one ground:
that [he] was absent or unavailable during the entire
time the arrest warrant was pending, making that time
excludable under § 29-1207(4)(d). We therefore confine
our speedy trial analysis under § 29-1207(4) to this nar-
row issue.
We find Jennings inapplicable. In Jennings, it was the
defendant who had appealed for reconsideration of his motion
to discharge after the motion was denied by the district court.
On appeal, the State’s briefing did not address the merits of
the lower courts’ speedy trial analysis or rulings and indeed
conceded that discharge would be appropriate if this court
were to reach the merits of the assigned error. Accordingly, our
review upon reaching the merits of the argument was limited
to the narrow issue presented to the county court. This same
limitation simply does not apply to this case, where the State
has appealed from a motion successful to the defendant granted
by the district court and where the State does not concede that
discharge is appropriate.
6
State v. Jennings, 308 Neb. 835, 846, 957 N.W.2d 143, 152 (2021).
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STATE v. BIXBY
Cite as 311 Neb. 110
Further, we disagree with Bixby’s contention that this issue
was not presented to the district court, because Bixby filed his
motion for absolute discharge pursuant to Ҥ29-1270 et seq
[sic].” In its order granting Bixby’s motion for absolute dis-
charge, the district court made findings that the statutory right
to a speedy trial is set forth in §§ 29-1207 and 29-1208, that
§ 29-1207(1) sets forth a 6-month deadline, that § 29-1207(4)
provides for extensions to that deadline through excludable
periods of delay, and that the burden of proof is on the State
to show that one or more of the excluded periods under
§ 29-1207(4) are applicable.
While the district court’s analysis focused primarily on
the application of § 29-1207(3), the district court also found
that Bixby’s plea in bar resulted in excludable days under
§ 29-1207(4). Accordingly, we are able to address the State’s
argument that the district court erred in its determination of
how many days were excluded under § 29-1207(4) as a result
of Bixby’s plea in bar.
(b) Additional Excludable Days
In its order granting Bixby’s motion for absolute discharge,
the district court explained that Bixby’s speedy trial deadline,
without any excludable days, was April 24, 2019. In total, the
court found that there were 615 excludable days:
[Bixby] filed his Plea in Bar on November 19, 2018. It
was denied on February 1, 2019. That is 74 days. The
appeal from that order was filed on March 4, 2019. By
spreading the mandate on August 26, 2020, this Court
reacquired jurisdiction on that date. That is 541 days for
a total of 615 days.
Adding those 615 days to April 24, 2019, the new speedy
trial deadline, according to the district court, was December
29, 2020.
Implicit in this calculation is a finding that the period of
31 days between February 1 and March 4, 2019—the time
between the denial of the plea in bar and Bixby’s appeal—was
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311 Nebraska Reports
STATE v. BIXBY
Cite as 311 Neb. 110
not excludable. The State asserts that this was an error pursuant
to § 29-1207(4), which states:
The following periods shall be excluded in computing the
time for trial:
(a) The period of delay resulting from other proceed-
ings concerning the defendant, including, but not limited
to, an examination and hearing on competency and the
period during which he or she is incompetent to stand
trial; the time from filing until final disposition of pretrial
motions of the defendant, including motions to suppress
evidence, motions to quash the indictment or informa-
tion, demurrers and pleas in abatement, and motions for
a change of venue; and the time consumed in the trial of
other charges against the defendant.
Under this language, the State asserts that Bixby’s motion did
not have a final disposition when it was denied because Bixby
was able to, and did, pursue an appeal.
Thus, the question before us is whether Bixby’s motion for
a plea in bar had a final disposition for purposes of speedy
trial calculations on the day it was denied by the district court
or whether final disposition did not occur until the matter was
determined by an appellate court. Because this question calls
for statutory interpretation regarding § 29-1207(4)(a) and the
meaning of the words “final disposition,” this court must reach
an independent conclusion irrespective of the determination
made by the district court below. 7
The State directs us to State v. White (White I ), 8 wherein
Calvin White was tried for second degree murder, use of a
firearm to commit murder, and theft of an automobile. After
White was convicted and sentenced, he appealed, and this
court affirmed both. 9 White subsequently filed a motion for
7
See, State v. Liming, supra note 3; State v. Baker, supra note 4.
8
State v. White, 244 Neb. 577, 508 N.W.2d 554 (1993).
9
Id.
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STATE v. BIXBY
Cite as 311 Neb. 110
p ostconviction relief, and in State v. White (White II ), 10 this
court reversed White’s convictions and sentences and remanded
the cause for a new trial.
The State filed a new information charging White in the
alternative with both first degree felony murder and second
degree murder, in accordance with our prior determinations
regarding White’s earlier appeals. 11 At this point, White filed
a plea in bar which, as amended, claimed that he had already
been acquitted of first degree murder and that the State could
not again charge him with first degree murder. 12 In State v.
White (White III ), this court agreed and remanded the cause for
further proceedings. 13
Shortly before White’s new trial was scheduled to begin,
the State filed a motion for reinstatement of White’s original
convictions based on opinions from this court that same year. 14
Meanwhile, White filed a motion for discharge on speedy trial
grounds. 15 In State v. White (White IV ), 16 upon consideration of
White’s motion for discharge, this court reviewed the cumula-
tive record of all of White’s four cases and determined:
White’s filing of the plea in bar on June 13, 1996, that
led to White III, stopped the clock with 21 days having
elapsed. The clock began running again as soon as the
trial court regained jurisdiction over White’s case by tak-
ing some action following our remand in White III.
This court then held that no time had elapsed off the clock
since the filing of White’s plea in bar on June 13, 1996, and
because White’s motion for discharge was filed the same day
10
State v. White, 249 Neb. 381, 543 N.W.2d 725 (1996), overruled on other
grounds, State v. Burlison, 255 Neb. 190, 583 N.W.2d 31 (1998).
11
State v. White, 254 Neb. 566, 577 N.W.2d 741 (1998).
12
Id.
13
Id.
14
State v. White, 257 Neb. 943, 601 N.W.2d 731 (1999).
15
Id.
16
Id. at 948, 601 N.W.2d at 735.
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STATE v. BIXBY
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that the trial court regained jurisdiction on August 20, 1998,
White had “stopped the clock before it could restart,” such that
no time had elapsed as of the time of the opinion. 17
In White IV, the issue presented on appeal in terms of
White’s motion for discharge was whether the speedy trial
clock had restarted following a mandate on remand from this
court or if it had been restarted prior to such mandate when
the trial court stated that “‘“[t]he week of March 20, 1995,
is hereby saved for a second trial . . . .”’” 18 Our decision in
White IV did not rest on a determination of whether the period
of time between the denial of White’s plea in bar and the fil-
ing of an appeal from that denial counted toward White or
toward the State. But, where this court concluded that no time
had elapsed, it is clear that such period of delay was counted
against White and not against the State.
After our opinion in White IV, the Court of Appeals con-
sidered excludable days for speedy trial calculations in State
v. Hayes. 19 On appeal, the defendant in Hayes argued that the
period from May 9, 2000, when his motion to suppress was
sustained in the district court, to December 21, when the dis-
trict court entered judgment on the Court of Appeals’ mandate,
could not be excluded from the speedy trial calculation because
the appeal was initiated by the State. The trial court noted the
language of § 29-1207(4)(a) regarding “final disposition” and
concluded that final disposition did not occur until the appeal
was over. 20 The Court of Appeals, recognizing that it was
required to reach a conclusion independent of the trial court’s
ruling on questions of law, agreed with this interpretation:
In the case of a defendant’s successful motion in the dis-
trict court to suppress evidence, the motion is not finally
granted or determined, unless there is no appeal, until
17
Id.
18
Id. at 947, 601 N.W.2d at 735.
19
State v. Hayes, 10 Neb. App. 833, 639 N.W.2d 418 (2002).
20
Id.
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STATE v. BIXBY
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a judge of the Court of Appeals has decided the mat-
ter . . . . The time from the defendant’s filing of such a
motion until final determination is excluded in the speedy
trial calculation. 21
Whether the motion to suppress in Hayes was not finally
granted or determined hinges on whether either party pursued
an appeal. If there was no appeal from a granted or denied
motion, the motion has a clear and final disposition for pur-
poses of the current action. If there was an appeal, the motion
is further put on hold while an appellate court reviews the
issues and renders a decision. We agree with the Court of
Appeals’ conclusion in Hayes and find that in the case of a
defendant’s pretrial motion, the motion is not finally granted or
determined, unless there is no appeal, until an appellate court
has decided the matter. The time from the defendant’s filing of
such motion until a final determination is excludable time for
purposes of a speedy trial calculation.
As was the case with White IV, the outcome of Hayes was
not dependent on a finding of whether the time between a
denied plea in bar and an appeal from that denial counted
toward or against the defendant. Instead, the issue under con-
sideration was whether the time for an interlocutory appeal is
excludable time for purposes of speedy trial calculations when
such appeal is initiated by the State rather than the defendant.
Nonetheless, the Court of Appeals in Hayes concluded that
the entire period “from June 8, 1999, when [the defendant]
filed the motion to suppress, until December 21, 2000, when
the district court acted on this court’s mandate” was exclud-
able time for speedy trial purposes. 22 We are not persuaded by
Bixby’s reliance on State v. Williams. 23 In Williams, we held
that the time excludable due to a defendant’s pretrial motions,
namely a plea in abatement and motion for discovery, ended on
21
Id. at 840, 639 N.W.2d at 426.
22
Id. at 841, 639 N.W.2d at 427.
23
State v. Williams, 277 Neb. 133, 761 N.W.2d 514 (2009).
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STATE v. BIXBY
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the day that the trial court overruled the plea. But in Williams,
we considered the issue of excludable time for speedy trial
purposes and found that an excludable period ended when the
trial court overruled the defendant’s plea, rather than when a
journal entry was later made ordering mutual discovery. Where
there was no appeal, we found that the final disposition of
the defendant’s motions was on the day they were granted or
denied, rather than the later date when the court ordered mutual
discovery. 24 Williams is consistent with our determination here
that unless there is no appeal, a motion is not finally granted
or determined for speedy trial purposes until an appellate court
has finally decided the matter.
By choosing to appeal the denial of his plea in bar, Bixby
prevented the plea in bar from having a “final disposition”
until it could be heard and decided by an appellate court. Per
our readings of White IV and Hayes, the 31 days between the
denial of Bixby’s plea in bar and the filing of an interlocutory
appeal from that denial should have therefore counted against
Bixby, not the State. Thus, the entire period from November
20, 2018, the day after Bixby filed his plea in bar, until August
26, 2020, the day the mandate on remand was spread on the
record of the district court, is excludable. This results in a total
of 31 additional excludable days.
The district court previously determined that Bixby should
be brought to trial by December 29, 2020. Based on this dead-
line, and by excluding the additional 31 days described above,
we find that the State had until January 29, 2021, to bring
Bixby to trial and that the trial scheduled for January 26, 2021,
would have been timely. Bixby’s motion for absolute discharge
was therefore filed prematurely, and the district court’s order
granting such motion was clearly erroneous. Accordingly, we
reverse the order of the district court which granted Bixby’s
motion for absolute discharge and remand the cause for fur-
ther proceedings.
24
Id.
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STATE v. BIXBY
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VI. CONCLUSION
For the foregoing reasons, we reverse the order of the
district court granting Bixby’s motion for absolute discharge
and remand the cause for further proceedings consistent with
this opinion.
Reversed and remanded for
further proceedings.
Freudenberg, J., concurring.
I agree with and join the majority opinion but write sepa-
rately because I believe Bixby invited and consented to the
trial date that he complains on appeal resulted in a violation of
his statutory right to a speedy trial.
At a hearing held on October 14, 2020, the State requested
that the court set a date for trial. The State reminded the court
of the 6-month deadline, stating that “right now we’re within
the six months we have from the filing of the mandate for
speedy trial purposes.” The State offered to be available for
trial whenever the court set the date. Bixby’s counsel did not
comment regarding the State’s speedy trial calculations, but he
opposed setting a trial date at that time because certain pretrial
motions had not yet been decided. The court acceded to the
request of Bixby’s counsel that a trial date not yet be set.
At a later hearing held October 26, 2020, the court took
under advisement a motion to vacate and indicated it wished
to set a date for trial. Counsel for Bixby again demurred to
setting a trial date, because additional pretrial motions were
not yet decided and a pretrial conference might be needed. But
this time the court insisted that a date be set. When the court
asked the State when the case needed to be tried by, the State
reiterated its understanding that the speedy trial date would be
February 26, 2021. Again, counsel for Bixby did not expressly
comment on this calculation, instead stating collegially, “Do
we want to do it early February?”
The court proposed an earlier trial date of January 26, 2021.
Bixby’s counsel responded he had been planning to be out
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of town but could make that date work. The court reporter
inquired again as to “the cutoff date,” to which the court
repeated, “February 26.” Bixby’s counsel then said, “January
26 is fine. I’ll make it happen. I was thinking in February, but
January 26.”
In sum, the court and the State attempted to engage in trans-
parent discussions with Bixby’s counsel to set a date agree-
able to everyone, which would not trigger statutory discharge.
Bixby’s counsel initially opposed setting a trial date; repeatedly
made no attempt to correct the State’s and the trial court’s
expressed understanding of when the statutory speedy trial date
would run; agreed to the January 26, 2021, date, while noting
he “was thinking in February”; and then he silently waited
until a week before the January 26 trial date before filing a
motion for absolute discharge based on the statutory right to
a speedy trial.
I oppose such gamesmanship. To reiterate the reasoning
of my concurring opinion in State v. Coomes, 1 the defendant
should not be able to complain of an alleged statutory speedy
trial violation the defendant was a party to. While I agree with
the majority opinion that the speedy trial clock did not run, it
is my opinion that a calculation of the excludable periods was
not necessary. Bixby waived any objection to the statutory
6-month speedy trial period based on a trial date that was set
with his active consent.
1
State v. Coomes, 309 Neb. 749, 962 N.W.2d 510 (2021) (Freudenberg, J.,
concurring).