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IN THE NEBRASKA COURT OF APPEALS

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

STATE V. MILLER

NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION

AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

STATE OF NEBRASKA, APPELLEE,

V.

KASEY MILLER, APPELLANT.

Filed August 22, 2023. No. A-22-861.

Appeal from the District Court for Furnas County: JAMES E. DOYLE IV, Judge. Affirmed.

Aaron M. Bishop, of Bishop Jones Law, for appellant.

Michael T. Hilgers, Attorney General, and Teryn Blessin for appellee.

BISHOP, ARTERBURN, and WELCH, Judges.

BISHOP, Judge.

INTRODUCTION

Kasey Miller was charged with first degree sexual assault in the county court for Furnas 

County. After the case was bound over to the Furnas County District Court, but before the filing 

of the information, Miller filed a “Motion for Discovery.” Miller’s motion remained unresolved 

until Miller subsequently filed a “Motion for Absolute Discharge,” arguing that the 6-month 

speedy trial period set out in Neb. Rev. Stat. § 29-1207 (Reissue 2016) had expired. The district 

court denied his motion, finding that the pendency of the motion for discovery tolled the running 

of the statutory speedy trial period. Miller appeals and, finding no clear error, we affirm.

BACKGROUND

On September 2, 2021, the State filed a complaint with the county court, charging Miller 

with first degree sexual assault, a Class II felony, pursuant to Neb. Rev. Stat. § 28-319 (Reissue 

2016). On September 24, Miller filed a “Waiver of Preliminary Hearing,” wherein he consented 
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to have the matter bound over to the district court. The county court entered an order that same 

day, binding the matter over to the district court and ordering Miller to appear for arraignment as 

ordered by the district court. On October 13, after the case was bound over, but before an 

information was filed, Miller filed with the district court a motion for discovery requesting that the 

court order the State to provide Miller with certain information and materials related to the charge 

against him. On November 24, the State filed an information charging Miller with first degree 

sexual assault. That same day, Miller filed a “Written Plea of Not Guilty and Arraignment 

Appearance Waiver.”

On June 2, 2022, the State, through a special prosecutor, filed a notice of hearing indicating 

that an “[a]rraignment hearing” was scheduled for July 8. At the hearing, the district court stated 

that it was “granting the motion” for discovery filed October 13, 2021, and Miller made an oral 

motion for absolute discharge. He argued that he was entitled to have the charge against him 

dismissed pursuant to § 29-1207 because the 6-month speedy trial period had expired on May 24, 

2022. He argued that “the statute that covered the issue of absolute discharge revolves around 

motions that are filed after the filing of the Information so that there is a speedy trial clock to toll.”

He contended that because Miller’s motion for discovery was filed before the information, it could 

not have tolled the “speedy trial clock.” That same day, Miller filed a written motion for absolute 

discharge stating that more than 6 months had elapsed since the filing of the information and Miller 

had filed no pretrial motions in that time.

On July 12, 2022, a hearing was held on Miller’s motion for absolute discharge. Miller’s 

counsel argued that there was “no reason for [Miller] to believe that the matter needed to be 

resolved further than his filing of the Motion for Discovery.” Counsel stated that “a majority of 

[his] practice [wa]s held” in Buffalo County, where it was standard practice for criminal defense 

attorneys to submit a motion for discovery at the outset of a case, as well as a proposed order which 

is typically adopted by the court without need for a hearing. He further stated that the State did not 

object to the motion and had in fact informed Miller’s counsel it would provide the requested 

discovery if Miller’s counsel sent the State a 500-gigabyte flash drive. Counsel acknowledged that 

there were “special and extenuating circumstances in this case with a prosecutor getting placed on 

the bench, and . . . [the] case being passed around a little bit.” He argued that the motion for 

discovery “came with a proposed order” and the “proposed order was in the file.” Counsel 

suggested that since there was no objection to his discovery motion and the State was willing to 

comply with his discovery request, “[t]here was no reason for him to believe that the matter needed 

to be resolved further than his filing of the Motion for Discovery.” The court asked Miller’s 

counsel whether he set the motion for a hearing, to which he responded, “I did not, Your Honor.”

When asked whether “the Court [was] asked to do something” with the motion, Miller’s counsel 

stated “No, Your Honor. The Court was not asked to do something.”

Miller’s counsel argued that “Miller made a reasonable request for discovery[,] [h]ad a 

proposed order that was not objected to[,] [t]here was . . . willingness to comply shown by the 

State prior to the Information even being filed[,]” and therefore, “at some point, reasonableness 

has to fall back on the responsibility of the State to prosecute this.” The State submitted its 

argument by brief and the court took the matter under advisement.

On November 1, 2022, the district court entered an order denying Miller’s motion for 

absolute discharge, finding that since Miller had a pending motion for discovery, the “speedy trial 
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clock stopped when the motion was filed.” The court cited State v. Turner, 252 Neb. 620, 564 

N.W.2d 231 (1997), where the Nebraska Supreme Court “considered a situation where the 

defendant filed a pretrial motion but took no action to bring the motion on for a hearing.” The court 

noted that in Turner, supra, the Supreme Court found that “‘[i]t is not the State’s or the court’s 

burden to pursue the defendant’s motions’” and “‘it will be presumed that a delay in hearing 

defense pretrial motions is attributable to the defendant unless the record affirmatively indicates 

otherwise.’” In this case, the court found that “the record [did] not affirmatively indicate that the 

delay in hearing [Miller’s] motion for discovery was caused by any act of the [State] or the court, 

i.e., the delay [was] attributable to [Miller].” It reasoned that if Miller “decided not to pursue the 

motion for discovery, the motion could have been withdrawn and the court contacted so that the 

case could proceed.” The court rejected Miller’s argument regarding the reasonableness of the 

delay, finding that Miller’s “claim of unreasonable delay is not a recognized excuse.” The court 

ultimately overruled and denied Miller’s motion for absolute discharge.

Miller appeals.

ASSIGNMENTS OF ERROR

Miller assigns that the district court’s denial of his motion for absolute discharge was (1) 

clearly erroneous, and (2) “a violation of his right to a speedy trial under U.S. Constitution, 

Amendment VI and Nebraska Constitution, Article I, Section 11.”

STANDARD OF REVIEW

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. Petty, 269 Neb. 205, 691 N.W.2d 101 (2005).

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. Id.

ANALYSIS

STATUTORY RIGHT TO SPEEDY TRIAL

Section 29-1207 requires discharge of a defendant whose case has not been tried within 6 

months after the filing of the information, unless the 6 months are extended by any period to be 

excluded in computing the time for trial. State v. McHenry, 268 Neb. 219, 682 N.W.2d 212 (2004). 

In computing the 6-month period for statutory speedy trial purposes, § 29-1207(4)(a) excludes, in 

relevant part, “the time from filing until final disposition of pretrial motions of the defendant.” A 

motion for discovery filed by a defendant is a pretrial motion and the period during which it is 

pending should be excluded for speedy trial calculation purposes. See State v. Washington, 269 

Neb. 728, 695 N.W.2d 438 (2005).

In this case, an information was filed against Miller on November 24, 2021. Therefore, the 

district court correctly concluded that absent any excluded time periods, the last day for 

commencement of Miller’s trial was May 24, 2022, several weeks before Miller filed his motion 

for absolute discharge. No one disputes the district court’s determination as to the 6-month date, 

before factoring in excludable periods. Rather, the issue is whether Miller’s motion for discovery 
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filed on October 13, 2021, after the case was bound over to the district court but 6 weeks prior to 

the filing of the information, tolled the speedy trial clock until the July 8, 2022, hearing, at which 

time the court granted the motion.

Miller argues that the period during which the motion for discovery was pending should 

not be excluded from the 6-month speedy trial period because the motion was filed prior to the 

filing of the information. He cites § 29-1207(2), which provides in relevant part that the “six-month 

period shall commence to run from the date the indictment is returned or the information filed.”

He argues that the 6-month period in this case began on November 24, 2021, the day the 

information was filed, and expired 6 months later on May 24, 2022, since “[t]here were no filings 

made by [him] during” those 6 months. Brief for appellant at 11. However, nothing in the text of 

§ 29-1207(4)(a) indicates that a pretrial motion filed prior to an information is not an excludable 

motion. In fact, the Nebraska Supreme Court has previously found “that under § 29-1207(4)(a), 

the period of delay is defined by the statute itself as the period between the filing and final 

disposition of the pretrial motion.” State v. Covey, 267 Neb. 210, 217, 673 N.W.2d 208, 213 

(2004). In describing the method of calculating an excludable period resulting from the pendency 

of a defendant’s pretrial motion, the Nebraska Supreme Court has stated that the excludable period 

“commences on the day immediately after the filing of a defendant’s pretrial motion” and ends at 

final disposition, which “occurs on the date the motion is granted or denied.” State v. Williams, 

277 Neb. 133, 141, 761 N.W.2d 514, 522 (2009) (internal quotation marks omitted). Since Miller’s 

motion for discovery was not disposed of until July 8, 2022, when the court granted it, the 6-month 

speedy trial period had not run by the time he filed his motion for absolute discharge.

Further, to the extent Miller implies that the delay was caused by the State or the district 

court, we disagree. It is not the State’s or the trial court’s burden to pursue the defendant’s motions. 

See State v. Turner, supra. Such motions are the primary responsibility of the party that brings 

them, and it is presumed that a delay in hearing defense pretrial motions is attributable to the 

defendant unless the record affirmatively indicates otherwise. See id. In Turner, supra, the 

Nebraska Supreme Court found that a defendant who failed to pursue his pretrial motions was at 

fault for the delay in disposition of those motions. It specifically stated that if the defendant “had 

decided not to pursue the motions, they could have been withdrawn and the trial court contacted 

so the case could have proceeded.” Id. at 630, 564 N.W.2d at 238. However, the defendant did not 

take such action and “cannot take advantage of the delay in being brought to trial where by his 

own inactions he is responsible for the delay.” Id. We likewise find that Miller was responsible for 

the delay in the disposition of his motion and being brought to trial. Miller’s counsel admitted to 

the district court that he failed to set a hearing on the motion for discovery or otherwise “ask[] [the 

court] to do something” with the motion. As the court pointed out in its November 1, 2022, order, 

and as set forth in Turner, supra, Miller could have withdrawn his motion if he no longer sought 

to pursue it, but he failed to do so. As such, we find the delay in disposition of the motion was 

attributable to Miller.

Section 29-1207(4)(a) dictates the exclusion of all time between the filing of a defendant’s 

pretrial motion and the final disposition of such motion, regardless of the promptness or 

reasonableness of the delay of disposition. See State v. Nelson, 313 Neb. 464, 984 N.W.2d 620 

(2023). We find no error in the district court’s denial of Miller’s motion for absolute discharge 

since the 6-month speedy trial period had not expired due to Miller’s pending motion for discovery.
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CONSTITUTIONAL RIGHT TO SPEEDY TRIAL

Miller’s motion for absolute discharge seeks dismissal of the case against him because the 

State “failed to prosecute the action within the required six-month period.” The motion does not 

reference his constitutional right to a speedy trial. Miller raises the issue of his right to a speedy 

trial under the federal and state constitutions for the first time on appeal. Accordingly, we cannot 

consider this portion of Miller’s argument. See Landrum v. City of Omaha Planning Bd., 297 Neb. 

165, 899 N.W.2d 598 (2017) (issue not presented to trial court may not be raised on appeal).

Further, even if Miller had raised his constitutional right to a speedy trial and the district 

court had denied his request for relief, we would not have had jurisdiction over that determination. 

See State v. Moody, 311 Neb. 143, 970 N.W.2d 770 (2022) (pretrial order denying motion for 

discharge on constitutional speedy trial grounds does not affect substantial right in special 

proceeding for purposes of Neb. Rev. Stat. § 25-1902(1)(b) (Cum. Supp. 2020), and is not 

reviewable in interlocutory appeal of order overruling motion for discharge on statutory speedy 

trial grounds; appellate court lacks jurisdiction to review claim regarding absolute discharge on 

constitutional speedy trial grounds on interlocutory basis).

CONCLUSION

We affirm the district court’s November 1, 2022, order denying Miller’s motion for 

absolute discharge on statutory speedy trial grounds.

AFFIRMED.