State v. Beck

Boslaugh, J.,

dissenting.

In holding that the defendant must be discharged because he was not tried within the statutory period prescribed in Neb. Rev. Stat. § 29-1207 (Reissue 1979), the majority opinion establishes a rule that prisoners released on bail have no duty to appear in the absence of further notice.

The defendant in this case was bound over to the District Court on October 6, 1980. Bail, which had been fixed at $2,500 by the county court, was reduced to $1,500 by the District Court on November 6, 1980. The bond which the defendant signed on that date required him to appear “from day to day, and from term to term, until final judgment or as directed by said Court, until finally discharged . . . .”

When the defendant failed to appear for arraignment on December 16, 1980, a bench warrant was issued December 22, 1980. The defendant did not again appear in court until August 20, 1981, after he had been apprehended on the bench warrant.

The record does not show where the defendant was from December 16, 1980, to August 20, 1981. His first counsel testified that he appeared with the defendant on only one occasion. When he was notified to appear with the defendant for a bond review, he attempted to contact the defendant but was unable to do so and had no address or phone number for the defendant at that time. In the absence of any evidence to the contrary, this evidence should be sufficient to support the finding of the District Court that the defendant was unavailable for trial from December 16, 1980, to August 20, 1981.

The general rule is that it is the responsibility of a prisoner, released on bail, to appear in the District *706Court in accordance with the terms of his bond without further notice. Holmes v. State, 17 Neb. 73, 22 N.W. 232 (1885); The People v. Sullivan, 339 Ill. 146, 171 N.E. 122 (1930). As stated in United States v. Lujan, 589 F.2d 436 (9th Cir. 1978), a defendant who is released on bail has a general obligation to keep in touch with his attorney and the court, as well as being present at the court proceedings against him. See, also, Palermo v. United States, 61 F.2d 138 (8th Cir. 1932); Caudillo v. State, 541 S.W.2d 617 (Tex. Crim. App. 1976).

The rule which this case adopts rewards the defendant who, after being released on bail, conceals his whereabouts from the court and his attorney. Such a defendant should not be entitled to a discharge under Neb. Rev. Stat. § 29-1208 (Reissue 1979).

Clinton, J., joins in this dissent.