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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 determination 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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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 discharge 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 solicited 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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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 triggered 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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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 dismissal 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 jurisdiction 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 pursuant 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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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 defendant’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 narrow 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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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 “§29-1270 et seq

[sic].” In its order granting Bixby’s motion for absolute discharge, 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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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 proceedings 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 information, 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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postconviction 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 cumulative 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 taking 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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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 filing 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 considered 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 district 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 district 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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a judge of the Court of Appeals has decided the matter . . . . 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 purposes 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 consideration 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 excludable 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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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 deadline, 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 further proceedings.

24 Id.
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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 separately 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 transparent discussions with Bixby’s counsel to set a date agreeable 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).