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State of Nebraska, appellee, v. Corey A. Brooks, appellant.

___ N.W.2d ___

Filed April 5, 2013. No. S-12-624.

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. Constitutional Law: Speedy Trial: Statutes. The constitutional right to a 

speedy trial is guaranteed by U.S. Const. amend. VI and Neb. Const. art. I, § 11; 

the constitutional right to a speedy trial and the statutory implementation of that 

right exist independently of each other.

3. Speedy Trial. If a defendant is not brought to trial before the running of the time 

for trial, as extended by excluded periods, he shall be entitled to his absolute 

discharge from the offense charged.

4. ____. 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).

5. Constitutional Law: Speedy Trial. Determining whether a defendant’s constitutional right to a speedy trial has been violated requires a balancing test in 

which the courts must approach each case on an ad hoc basis. This balancing 

test involves four factors: (1) length of delay, (2) the reason for the delay, (3) the 

defendant’s assertion of the right, and (4) prejudice to the defendant.

Appeal from the District Court for Douglas County: Joseph

S. Troia, Judge. Affirmed.

Justin A. Quinn and Kevin A. Ryan for appellant.

Jon Bruning, Attorney General, and Kimberly A. Klein for 

appellee.

Heavican, C.J., Wright, Connolly, Stephan, McCormack, 

Miller-Lerman, and Cassel, JJ.

Wright, J.

NATURE OF CASE

In October 2011, Corey A. Brooks was charged in Douglas 

County District Court with, among other crimes, first degree 

murder and possession with intent to deliver a controlled 

substance. The murder charge was docketed in case No. 

CR-11-2017. The drug charge was docketed in case No. 

CR-11-2018. The cases were not consolidated; however, both 

cases were set for trial in March 2012.
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Brooks’ counsel filed a written motion to continue in the 

drug case but did not file a written motion in the murder case. 

At a hearing in the murder case, counsel stated he would not 

be ready for trial by the March 2012 trial date and orally 

requested a continuance. The district court continued trial in 

both cases to July.

In June 2012, Brooks moved for discharge in the murder 

case, alleging that his statutory and constitutional rights to a 

speedy trial had been violated. The district court overruled his 

motion, and Brooks appealed.

SCOPE 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. Tamayo, 280 Neb. 836, 791 N.W.2d 

152 (2010).

FACTS

On October 5, 2011, an information was filed in CR-11-2017, 

charging Brooks with first degree murder, use of a deadly 

weapon to commit a felony, and possession of a deadly 

weapon by a prohibited person. That same day, an information 

was filed against Brooks in CR-11-2018 for manufacturing, 

distributing, or possessing with intent to distribute methamphetamine and possession of a deadly weapon by a prohibited 

person. The cases were not consolidated, but trial was scheduled in both cases for March 5, 2012. The State’s amended 

information for CR-11-2017 included first degree murder during the commission of a kidnapping, and the amended informations in both CR-11-2017 and CR-11-2018 added habitual 

criminal charges.

On February 2, 2012, Brooks’ counsel moved to withdraw, 

and his motion was sustained. (New counsel had entered his 

appearance in both cases on January 30.) On February 10, 

Brooks’ new counsel filed a written motion to continue trial in 

CR-11-2018 but not in CR-11-2017.

At a February 22, 2012, hearing in CR-11-2017, Brooks’ 

counsel stated he had advised Brooks that a continuance was 
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desirable due to “the magnitude of the case and the possible 

consequences and the enormous amount of discovery and now 

more discovery that was provided to us just a few moments 

ago.” He also made it clear that Brooks was aware of the 

request for a continuance and that they had talked about it 

several times.

The district court asked Brooks if he had any objection to the 

continuance. Brooks responded, “No, I don’t.” After hearing 

Brooks’ response, the court continued the trial in CR-11-2017. 

The court also entered an order to continue CR-11-2018. Both 

cases were scheduled to be tried on July 9, 2012. Brooks made 

no objection to the trial date of July 9.

On June 21, 2012, Brooks moved for discharge in 

CR-11-2017. He alleged he had not been tried within 6 months 

from the filing of the information, in violation of his statutory and constitutional rights to a speedy trial. Brooks claimed 

that he filed a written motion to continue in CR-11-2018 in 

conformance with Neb. Rev. Stat. § 25-1148 (Reissue 2008). 

He alleges that because he did not file a written motion in 

CR-11-2017, he did not request a continuance in CR-11-2017. 

However, the district court granted Brooks’ motion for a continuance in CR-11-2017 based on his oral request during the 

February 22 hearing in CR-11-2017.

At the June 25, 2012, hearing on Brooks’ motion to discharge, the State offered into evidence printed copies of the 

search results for both CR-11-2017 and CR-11-2018 found 

on the Judicial User System to Improve Court Efficiency 

(JUSTICE). JUSTICE is Nebraska’s online trial court case 

management system that provides public information about 

cases, including a register of actions that were recorded in 

a particular case. Exhibit 1, the printout for CR-11-2018, 

includes a journal entry for February 22 written by the district 

court judge that reads: “[Brooks’] Motion to Continue Trial 

heard. Motion granted. Trial reset for July 9, 2012 at[ ]9:00 

a.m.” Exhibit 3, the printout for CR-11-2017, contains a similar 

entry from February 22 stating: “[Brooks’] Motion to Continue 

Trial heard. Trial set for March 5, 2012 is continued to July 

9, 2012.”
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The district court overruled Brooks’ motion for discharge. 

The court found it was “the intention of [Brooks’] counsel to 

file a written Motion for Continuance in both CR 11 - 2017 and 

CR 11 - 2018.” It noted that at the February 22, 2012, hearing, 

counsel had asserted that he could not be ready for trial on 

March 5 because he had become Brooks’ counsel only recently. 

And following the February 22 hearing, the court had continued both cases and rescheduled the trial date to July 9. Based 

on the written motion in CR-11-2018 and the oral request for a 

continuance in CR-11-2017, the court determined that a motion 

to continue had been requested and granted in both cases. 

Brooks appealed. We moved the case to our docket pursuant 

to our authority to regulate the dockets of this court and the 

Nebraska Court of Appeals. See Neb. Rev. Stat. § 24-1106(3) 

(Reissue 2008). We affirm.

ASSIGNMENTS OF ERROR

Brooks assigns that the district court erred in failing to 

sustain the motion for discharge in CR-11-2017, because the 

State failed to bring the matter to trial within 6 months as 

required by Neb. Rev. Stat. § 29-1207 (Cum. Supp. 2012), and 

that this failure violated his constitutional right to a speedy 

trial guaranteed by U.S. Const. amend. VI and Neb. Const. 

art. I, § 11.

ANALYSIS

[2] Brooks alleges the State failed to bring him to trial 

within 6 months of filing the original information, in violation 

of both his statutory and constitutional rights to a speedy trial. 

The constitutional right to a speedy trial is guaranteed by U.S. 

Const. amend. VI and Neb. Const. art. I, § 11; the constitutional 

right to a speedy trial and the statutory implementation of that 

right exist independently of each other. State v. Feldhacker, 

267 Neb. 145, 672 N.W.2d 627 (2004).

Statutory Right to

Speedy Trial

The statutory right to a speedy trial is set forth in § 29-1207 

and Neb. Rev. Stat. § 29-1208 (Cum. Supp. 2012). If a 

defendant has not been brought to trial within 6 months, as 
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computed by § 29-1207, he or she is entitled to absolute discharge from the offense charged. See § 29-1208.

[3] Nebraska’s speedy trial statutes provide that “[e]very 

person indicted or informed against for any offense shall be 

brought to trial within six months, and such time shall be computed as provided in this section.” § 29-1207(1). If a defendant is not brought to trial before the running of the time for 

trial, as extended by excluded periods, he shall be entitled to 

his absolute discharge from the offense charged. See State v. 

Knudtson, 262 Neb. 917, 636 N.W.2d 379 (2001).

[4] 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. Lee, 282 Neb. 

652, 807 N.W.2d 96 (2011). The State filed the information for 

CR-11-2017 on October 5, 2011. Excluding that day, 6 months 

forward would be April 6, 2012, and backing up 1 day, the 

speedy trial deadline for Brooks’ trial was April 5.

On February 22, 2012, at a hearing in CR-11-2017, the 

State pointed out that there was going to be conversation about 

the March 5 trial date. At this time, Brooks’ counsel advised 

the court that he was newly appointed and that “within the 

last couple weeks,” he had received “about 30-some odd CD 

disks” in discovery. He advised the court that he had filed a 

motion to continue “a couple weeks ago” and requested that 

the scheduled trial date be continued. That motion was sustained by the district court at the hearing, and the court’s ruling was recorded via a journal entry in the court’s records that 

was available to the parties via JUSTICE. The court rescheduled Brooks’ trials to July 9, and Brooks did not object to the 

July 9 trial date.

Brooks argues that because he did not file a written motion 

for continuance in CR-11-2017, the district court erred in 

not granting his absolute discharge in CR-11-2017. Section 

25-1148 requires that an application for continuance by a party 

to the case shall be in writing. But this does not mean that 

a court cannot grant a continuance simply because a written 

motion was not filed. In the case at bar, Brooks’ motion for a 

continuance was set forth in the record of the colloquy at the 
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February 22, 2012, hearing in CR-11-2017. This written record 

provided a factual basis upon which the court could consider 

Brooks’ motion for discharge.

Where continuances are granted at the request of the 

defendant, the defendant cannot later complain that the 

court violated Neb. Rev. Stat. § 29-1206 (Reissue 2008) and 

§ 25-1148 in granting his or her request. State v. Turner, 252 

Neb. 620, 564 N.W.2d 231 (1997). Sections 29-1206 and 

25-1148 do not define whether a defendant’s right to a speedy 

trial has been violated. Rather, they guide the court and the 

parties in the proper standard and procedure for continuances 

in light of not only the parties’ interests but also the public 

interest in a reasonably prompt disposition of the case. State 

v. Turner, supra.

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. Tamayo, 280 Neb. 836, 791 N.W.2d 152 

(2010). The trial court determined that Brooks had requested 

a continuance in both CR-11-2017 and CR-11-2018. We conclude that this factual finding was not clearly erroneous.

On June 21, 2012, Brooks’ motion for absolute discharge 

was overruled, and Brooks appealed. Thus, Brooks’ speedy 

trial clock was tolled from the date of his motion for continuance until the resolution of this appeal from the order 

overruling his motion for discharge. The entire period from 

the filing of the motion to continue until the resolution of 

Brooks’ appeal from the order overruling his motion to discharge is excluded from the 6-month calculation. See State 

v. Feldhacker, 267 Neb. 145, 672 N.W.2d 627 (2004). When 

Brooks moved for discharge, the 6 months in which to bring 

him to trial had not expired. The court did not err in overruling Brooks’ motion for discharge based upon his statutory 

right to a speedy trial.

Constitutional Right to

Speedy Trial

[5] Determining whether a defendant’s constitutional right 

to a speedy trial has been violated requires a balancing test in 
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which the courts must approach each case on an ad hoc basis. 

State v. McLeod, 274 Neb. 566, 741 N.W.2d 664 (2007). This 

balancing test involves four factors: (1) length of delay, (2) the 

reason for the delay, (3) the defendant’s assertion of the right, 

and (4) prejudice to the defendant. Id. None of these four factors standing alone is a necessary or sufficient condition to the 

finding of a deprivation of the right to speedy trial. Rather, the 

factors are related and must be considered together with other 

circumstances as may be relevant. Id.

Brooks’ trial counsel requested a continuance in order to 

properly prepare for a murder trial. Counsel stated that he 

encouraged Brooks to support the continuance due to “the 

magnitude of the case and the possible consequences and the 

enormous amount of discovery and now more discovery that 

was provided to us just a few moments ago.” The district court 

granted a continuance on February 22, 2012. Brooks’ case had 

been pending 4 months 17 days. All subsequent delays were 

the result of Brooks’ motion for a continuance and his motion 

for absolute discharge.

Brooks has not shown that the delay prior to his motion for 

a continuance violated his constitutional right to a speedy trial. 

We stated in State v. Jameson, 224 Neb. 38, 43, 395 N.W.2d 

744, 747 (1986): “It would be a strange anomaly if a defendant 

could first ask for a series of continuances and then be immune 

from prosecution because he had not been granted a speedy 

trial. Even under the most liberal view of the sixth amendment, that argument will not ‘hold water.’” Our analysis under 

the four-factor balancing test reveals no constitutional speedy 

trial violation.

CONCLUSION

The district court did not err when it overruled Brooks’ 

motion for discharge. His counsel asked for and was granted a 

continuance in CR-11-2017 at the February 22, 2012, hearing. 

All delays in the trial were the result of Brooks’ motion for 

continuance and motion for discharge. There was no violation 

of Brooks’ statutory or constitutional rights to a speedy trial. 

Therefore, the judgment of the district court is affirmed.

Affirmed.