Decisions of the Nebraska Court of Appe

STATE v. JOHNSON 747

Cite as 22 Neb. App. 747 

State of Nebraska, appellee, v

Scott A. Johnson, appellan

___ N.W.2d ___

Filed February 10, 2015. No. A-14-085.

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. Speedy Trial. Neb. Rev. Stat. § 29-1207 (Cum. Supp. 2014) 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.

3. Speedy Trial: Pretrial Procedure. Neb. Rev. Stat. § 29-1207(4)(a) (Cum. Supp. 

2014) specifically excludes from the speedy trial calculation the time from filing 

until final disposition of pretrial motions of the defendant.

4. Courts: Speedy Trial: Pretrial Procedure. A court cannot table a motion and 

thereby suspend a defendant’s rights where judicial delay without a showing of 

good cause under Neb. Rev. Stat. § 29-1207(4)(f) (Cum. Supp. 2014) would otherwise warrant discharge.

5. Speedy Trial: Good Cause. Where the excludable period properly falls under 

Neb. Rev. Stat. § 29-1207(4)(a) (Cum. Supp. 2014) rather than the catchall provision of § 29-1207(4)(f), no showing of reasonableness or good cause is necessary 

to exclude the delay.

6. Speedy Trial: Pretrial Procedure: Good Cause. Unlike the requirement in 

Neb. Rev. Stat. § 29-1207(4)(f) (Cum. Supp. 2014) that any delay be for good 

cause, conspicuously absent from § 29-1207(4)(a) is any limitation, restriction, or 

qualification of the time which may be charged to the defendant as a result of the 

defendant’s motions.

7. Speedy Trial: Pretrial Procedure. The plain terms of Neb. Rev. Stat. 

§ 29-1207(4)(a) (Cum. Supp. 2014) exclude all time between the time of the filing of the defendant’s pretrial motions and their final disposition, regardless of 

the promptness or reasonableness of the delay.

8. Courts: Constitutional Law: Speedy Trial: Appeal and Error. The Nebraska 

Supreme Court has never recognized a right to interlocutory appeal solely concerning the constitutional right to speedy trial.

9. Final Orders: Speedy Trial: Appeal and Error. An appeal from a final order—

as an order denying a nonfrivolous statutory speedy trial claim is—may raise 

every issue presented by the order that is the subject of the appeal.

10. Constitutional Law: Judgments: Speedy Trial: Appeal and Error. The overruling of a motion alleging the denial of a speedy trial based upon constitutional 

grounds pendent to a nonfrivolous statutory claim may be reviewed upon appeal 

from that order.

11. Constitutional Law: Speedy Trial. The constitutional right to a speedy trial is 

guaranteed by U.S. Const. amend. VI and Neb. Const. art. I, § 11.
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748 22 NEBRASKA APPELLATE REPORTS

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

speedy trial and the statutory implementation of that right exist independently of 

each other.

13. Constitutional Law: Speedy Trial. It is an unusual case in which the Sixth 

Amendment has been violated when the time limits under the speedy trial act 

have been met.

14. Speedy Trial: Words and Phrases. A speedy trial, generally, is one conducted 

according to prevailing rules and proceedings of law, free from arbitrary, vexatious, and oppressive delay.

15. Constitutional Law: Speedy Trial. The right to a speedy trial is generically 

different from any of the other rights enshrined in the Constitution for the 

protection of the accused, because it implicates both the rights of the accused 

to be treated decently and fairly and societal interests in providing a speedy 

trial that exist separately from, and sometimes in opposition to, the interests of 

the accused.

16. Speedy Trial: Judgments: Pretrial Procedure. The right to a speedy trial is a 

more vague concept than other procedural rights, and there is no fixed point at 

which it can be determined how long is too long in a system where justice is to 

be swift but deliberate.

17. Constitutional Law: Courts: Speedy Trial. The U.S. Supreme Court has developed a balancing test to determine whether a defendant’s constitutional right to a 

speedy trial has been violated. This balancing test involves four factors: (1) the 

length of the delay, (2) the reason for the delay, (3) the defendant’s assertion of 

the right, and (4) prejudice to the defendant.

18. Constitutional Law: Speedy Trial. None of the four factors for determining 

whether a defendant’s constitutional right to a speedy trial has been violated, 

standing alone, is a necessary or sufficient condition to the finding of a deprivation of the right to a speedy trial; rather, the factors are related and must be 

considered together with such other circumstances as may be relevant.

19. Constitutional Law: Criminal Law: Pretrial Procedure: Time. The Fifth 

Amendment has only a limited role to play in protecting against oppressive delay 

in the criminal context.

20. Speedy Trial: Due Process: Proof. The due process claimant’s burden is a heavy 

one, requiring a showing of both substantial actual prejudice resulting from the 

trial delay and bad faith on the part of the government.

Appeal from the District Court for Lancaster County: 

Stephanie F. Stacy, Judge. Affirmed in part, and in pa

remanded with directions.

Matthew K. Kosmicki for appellant.

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

appellee.
Decisions of the Nebraska Court of Appe

STATE v. JOHNSON 749

Cite as 22 Neb. App. 747 

Moore, Chief Judge, and Irwin and Pirtle, Judge

Irwin, Judge

I. INTRODUCTION

Scott A. Johnson appeals an order of the district court for 

Lancaster County, Nebraska, denying his motion for absolute 

discharge on speedy trial grounds. On appeal, Johnson argues 

that the court erred in not granting relief on the basis of statutory speedy trial rights and constitutional speedy trial rights. 

We find no merit to Johnson’s assertion concerning his statutory speedy trial claim. With respect to Johnson’s constitutional 

speedy trial claim, we remand the matter with directions for 

further consideration.

II. BACKGROUND

We initially note that there is no dispute in this case about 

the number of days to be attributed to the various time periods since the information was filed against Johnson. Rather, 

Johnson’s arguments are based entirely on assertions that the 

time it took the district court to rule on a motion to suppress 

constituted an inordinate and unreasonable delay and that 

sometime during that delay, he was denied a speedy trial.

On June 7, 2012, Johnson was charged by information with 

possession of a controlled substance.

On June 15, 2012, Johnson filed pretrial discovery motions. 

The district court ruled on Johnson’s motions on June 19. The 

court concluded that as a result of these pretrial motions, 4 

days were properly excluded from the speedy trial calculation. 

Johnson has not challenged this calculation.

On September 13, 2012, Johnson requested the case be continued from the October 2012 jury term to the December 2012 

jury term. The court granted Johnson’s request and accepted 

his waiver of speedy trial for that period. The district court 

concluded that as a result of this request, 81 days were properly excluded from the speedy trial calculation. Johnson has 

not challenged that calculation.

On November 1, 2012, Johnson moved to continue the case 

to the February 2013 jury term. The court granted this request. 
Decisions of the Nebraska Court of Appe

750 22 NEBRASKA APPELLATE REPORTS

The district court concluded that as a result of this request, 95 

additional days would be properly excluded from the speedy 

trial calculation, but that 32 of those days overlapped the time 

properly excluded because of the prior continuance; as a result, 

the court concluded that 63 additional days were properly 

excluded from the speedy trial calculation. Johnson has not 

challenged that calculation.

On January 17, 2013, Johnson filed a motion to suppress. 

The motion was heard on March 20, and the court took the 

motion under advisement. The court entered an order overruling the motion to suppress on December 2.

On December 20, 2013, Johnson filed a motion for absolute 

discharge. In the motion, Johnson specifically asserted that his 

motion for discharge was based on his allegations that he had 

been denied both his statutory and his constitutional rights to 

speedy trial.

At the hearing on Johnson’s motion for discharge, the parties presented argument and the State offered an exhibit demonstrating the State’s calculation of excludable time periods. 

There was no testimony presented, and there was no discussion on the record concerning the reasons for the court’s delay 

in ruling on Johnson’s motion to suppress from March until 

December 2013. Johnson argued the court should find that 

the court’s delay in ruling on the motion to suppress was an 

inordinate and unreasonable delay and, based on the Nebraska 

Supreme Court’s ruling in State v. Wilcox, 224 Neb. 138, 395 

N.W.2d 772 (1986), that he was entitled to discharge.

On January 15, 2014, the district court entered an order 

overruling Johnson’s motion for discharge. The court specifically distinguished the present case from State v. Wilcox, supra, 

found that the entire time from Johnson’s filing of the motion 

to suppress until the court’s ruling on the motion was properly 

excludable as being attributed to a pretrial motion filed by the 

defendant, and concluded that the statutory time for speedy 

trial would not expire until March 2014. The court did not 

mention Johnson’s assertion regarding his constitutional right 

to speedy trial.

This appeal followed.
Decisions of the Nebraska Court of Appe

STATE v. JOHNSON 751

Cite as 22 Neb. App. 747 

III. ASSIGNMENT OF ERROR

On appeal, Johnson has assigned one error. He asserts that 

the district court erred in overruling his motion for absolute discharge.

IV. ANALYSIS

We initially note that there are no issues raised in this case 

concerning the “counting” of particular days attributed to the 

various pretrial filings and rulings. Rather, the primary argument in this appeal concerns whether the length of time it took 

the court to rule on Johnson’s motion to suppress constituted 

an inordinate or unreasonable delay such that, at some point 

during that time, Johnson’s speedy trial rights were violated.

[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. Hettle, 288 Neb. 288, 848 N.W.2d 

582 (2014).

1. Statutory Speedy Trial 

Johnson first asserts that his statutory right to speedy trial 

under Neb. Rev. Stat. § 29-1207 (Cum. Supp. 2014) was violated, because the more than 8 months that his motion to suppress was under advisement resulted in his not being brought 

to trial within 6 months. His argument is premised upon, and 

depends upon, a conclusion that the time that his motion was 

pending is not entirely excluded from the speedy trial calculation because there was inordinate or unreasonable judicial 

delay without good cause. We find no merit to Johnson’s assertion and conclude that this time period was entirely excludable 

as attributed to his pretrial motion to suppress.

[2,3] 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. 

Hettle, supra; State v. Turner, 252 Neb. 620, 564 N.W.2d 231 

(1997). Section 29-1207(4)(a) specifically excludes from the 

speedy trial calculation “the time from filing until final disposition of pretrial motions of the defendant.”
Decisions of the Nebraska Court of Appe

752 22 NEBRASKA APPELLATE REPORTS

In this case, Johnson relies heavily on the outcome in State 

v. Wilcox, 224 Neb. 138, 395 N.W.2d 772 (1986), as support 

for his assertion that even though the period of time at issue 

here involved the period of time it took the court to rule on his 

pretrial motion to suppress, it was an unreasonable period of 

time for such a ruling and constituted judicial delay without a 

showing of good cause. In State v. Wilcox, supra, the Nebraska 

Supreme Court held that a defendant was denied his right to a 

speedy trial where a motion to suppress filed by the defendant 

was not heard until 1 year 7 months 24 days after it was filed. 

The motion was set for hearing a little over 1 month after it 

was filed. However, the motion was not heard at that time 

because the judge recused himself. Thereafter, the record indicated no action in the case for 1 year 4 months 26 days, until 

finally the substituted judge received the transcript and 16 days 

later ruled on the motion.

[4] In State v. Wilcox, supra, the Nebraska Supreme Court 

concluded that the defendant’s rights under § 29-1207 had 

been violated. In addressing the time period after the substituted judge had been assigned to the case, the court stated 

that a court cannot table a motion and thereby suspend a 

defendant’s rights where judicial delay without a showing 

of good cause under § 29-1207(4)(f) would otherwise warrant discharge.

[5] Since its ruling in State v. Wilcox, supra, the Nebraska 

Supreme Court has clarified its ruling and consistently rejected 

the argument that Johnson makes in this case, by drawing a distinction between cases where the period of delay 

properly falls under § 29-1207(4)(a) and cases where the 

period of delay properly falls under the catchall provision 

of § 29-1207(4)(f). See, State v. Covey, 267 Neb. 210, 673 

N.W.2d 208 (2004); State v. Turner, supra; State v. Lafler, 

225 Neb. 362, 405 N.W.2d 576 (1987), abrogated on other 

grounds, State v. Oldfield, 236 Neb. 433, 461 N.W.2d 554 

(1990). In State v. Lafler, supra, the court clarified that where 

the excludable period properly falls under § 29-1207(4)(a) 

rather than the catchall provision of § 29-1207(4)(f), no showing of reasonableness or good cause is necessary to exclude 

the delay.
Decisions of the Nebraska Court of Appe

STATE v. JOHNSON 753

Cite as 22 Neb. App. 747 

The court explained that the delay in State v. Wilcox, 224 

Neb. 138, 395 N.W.2d 772 (1986), was not based on one of 

the specifically enumerated or described periods of delay 

under § 29-1207(4)(a). State v. Lafler, supra. Rather, the delay 

in State v. Wilcox, supra, in the court’s actually assigning and 

hearing the defendant’s motion was attributable to judicial 

neglect and fell under § 29-1207(4)(f), wherein other periods of delay not specifically enumerated are excludable, but 

only if the court finds that they are for good cause. State v. 

Lafler, supra.

[6,7] Unlike the requirement in § 29-1207(4)(f) that 

any delay be for good cause, conspicuously absent from 

§ 29-1207(4)(a) is any limitation, restriction, or qualification 

of the time which may be charged to the defendant as a result 

of the defendant’s motions. State v. Turner, 252 Neb. 620, 

564 N.W.2d 231 (1997); State v. Lafler, supra. Rather, the 

plain terms of § 29-1207(4)(a) exclude all time between the 

time of the filing of the defendant’s pretrial motions and their 

final disposition, regardless of the promptness or reasonableness of the delay. State v. Turner, supra; State v. Lafler, supra. 

Nebraska’s statute is similar to the federal Speedy Trial Act of 

1974, 18 U.S.C. § 3161 et seq. (2012), and the U.S. Supreme 

Court in Henderson v. United States, 476 U.S. 321, 106 S. Ct. 

1871, 90 L. Ed. 2d 299 (1986), stated that the plain terms of 

the act excluded all time between the filing and the hearing on 

a motion whether or not the hearing had been promptly held 

and that the period of delay was not required to be reasonable. See, State v. Turner, supra; State v. Lafler, supra. The 

Nebraska Legislature could have drafted Nebraska’s statutes 

to apply a reasonable time requirement to § 29-1207(4)(a), but 

did not.

The defendants in State v. Turner, supra, and in State v. 

Lafler, supra, made arguments similar to the one set forth by 

Johnson in this case, asserting that periods of time attributed 

to their pretrial motions should be considered inordinate or 

unreasonable delay and require a showing of good cause to satisfy speedy trial rights. The Nebraska Supreme Court rejected 

that argument in both cases, and we similarly reject it here. 

The record demonstrates that Johnson’s motion was heard and 
Decisions of the Nebraska Court of Appe

754 22 NEBRASKA APPELLATE REPORTS

taken under advisement, and there is nothing to suggest any 

kind of judicial neglect comparable to that in State v. Wilcox, 

supra. As such, the district court correctly concluded that the 

entire time attributed to the motion to suppress was properly 

excluded, and the court was not clearly erroneous in so holding. This assigned error is without merit.

2. Constitutional Speedy Trial 

Johnson next asserts that the district court erred in not finding that his constitutional right to a speedy trial was violated. 

The court did not make any findings on this issue or resolve 

the issue, and we conclude that the matter must be remanded 

for further consideration.

We initially note that the State asserts on appeal that a 

defendant is not entitled to appeal from a pretrial ruling denying relief based on constitutional speedy trial rights. The State 

argues: “The U.S. Supreme Court has expressly held that no 

interlocutory appeal lies from a denial of relief based upon 

the constitutional rights to speedy trial.” Brief for appellee 

at 3, citing United States v. MacDonald, 435 U.S. 850, 98 S. 

Ct. 1547, 56 L. Ed. 2d 18 (1978). The State asserts that the 

Nebraska Supreme Court has never recognized a right to interlocutory appeal solely concerning the constitutional right to 

speedy trial. We find the authority upon which the State bases 

its argument in this case to be distinguishable, because the factual scenario at hand does not involve an interlocutory appeal 

based solely on an alleged constitutional violation of a right to 

speedy trial.

In United States v. MacDonald, supra, the U.S. Supreme 

Court did reverse a lower court decision and remand the matter 

on the basis of concluding that a defendant was not entitled to 

a pretrial appeal on speedy trial grounds. In that case, however, 

the defendant had sought relief solely on the basis of his Sixth 

Amendment right to a speedy trial and there was no statutory 

claim also at issue.

[8] In State v. Wilson, 15 Neb. App. 212, 724 N.W.2d 99 

(2006), this court was faced with an appeal from the denial 

of a motion to discharge on the basis of both statutory and 

constitutional speedy trial rights. We found the defendant’s 
Decisions of the Nebraska Court of Appe

STATE v. JOHNSON 755

Cite as 22 Neb. App. 747 

statutory claim to be frivolous, and we declined to address the 

constitutional claim on the basis that the constitutional claim, 

in the absence of a nonfrivolous statutory claim, was not a 

final, appealable order. Id. In so finding, we recognized the 

U.S. Supreme Court’s holding in United States v. MacDonald, 

supra. As the State notes in its brief in this case, we stated in 

State v. Wilson, 15 Neb. App. at 221, 724 N.W.2d at 107, that 

“the Nebraska Supreme Court has never recognized a right to 

interlocutory appeal solely concerning the constitutional right 

to speedy trial.”

[9,10] The State’s reliance on this authority, however, is 

unpersuasive in this case because the appeal herein is clearly 

not solely concerning the constitutional right to speedy trial. 

As discussed significantly above, this case involves both a 

nonfrivolous statutory claim and a constitutional claim. In 

State v. Wilson, supra, we also noted that an appeal from 

a final order—as an order denying a nonfrivolous statutory 

speedy trial claim is—may raise every issue presented by the 

order that is the subject of the appeal. Thus, the overruling of 

a motion alleging the denial of a speedy trial based upon constitutional grounds pendent to a nonfrivolous statutory claim 

may be reviewed upon appeal from that order. Id. See, State v. 

Hettle, 288 Neb. 288, 848 N.W.2d 582 (2014); State v. Brooks, 

285 Neb. 640, 828 N.W.2d 496 (2013).

[11-13] The constitutional right to a speedy trial is guaranteed by U.S. Const. amend. VI and Neb. Const. art. I, § 11. 

State v. Hettle, supra. The constitutional right to a speedy trial 

and the statutory implementation of that right exist independently of each other. Id. Nevertheless, § 29-1207 provides a 

useful standard for assessing whether the length of a trial delay 

is unreasonable under the U.S. and Nebraska Constitutions. 

State v. Hettle, supra. It is an unusual case in which the Sixth 

Amendment has been violated when the time limits under the 

speedy trial act have been met. State v. Hettle, supra.

[14-16] A speedy trial, generally, is one conducted according to prevailing rules and proceedings of law, free from 

arbitrary, vexatious, and oppressive delay. Id. But the right is 

generically different from any of the other rights enshrined in 

the Constitution for the protection of the accused, because it 
Decisions of the Nebraska Court of Appe

756 22 NEBRASKA APPELLATE REPORTS

implicates both the rights of the accused to be treated decently 

and fairly and societal interests in providing a speedy trial 

that exist separately from, and sometimes in opposition to, the 

interests of the accused. See id. In addition, deprivation of the 

right may sometimes work to the benefit of the accused. Id.

The right is a more vague concept than other procedural rights, 

and there is no fixed point at which it can be determined how 

long is too long in a system where justice is to be swift but 

deliberate. Id.

[17,18] The U.S. Supreme Court has developed a balancing 

test to determine whether a defendant’s constitutional right 

to a speedy trial has been violated. See Barker v. Wingo, 407 

U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972). This balancing test involves four factors: (1) the length of the delay, 

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

the right, and (4) prejudice to the defendant. State v. Hettle, 

supra. None of these four factors, standing alone, is a necessary or sufficient condition to the finding of a deprivation of 

the right to a speedy trial; rather, the factors are related and 

must be considered together with such other circumstances as 

may be relevant. State v. Tucker, 259 Neb. 225, 609 N.W.2d 

306 (2000).

In this case, Johnson clearly raised his constitutional speedy 

trial right as a basis for his motion for absolute discharge. 

Nonetheless, the order of the district court denying the motion 

for discharge does not include any mention of the constitutional right, does not include any consideration of the four 

factors that must be balanced, and does not include any kind 

of factual findings about such considerations as the reason 

for the delay or the potential prejudice to Johnson as the 

defendant. Without any findings to review, it is impossible 

for this court to determine whether the district court was 

clearly erroneous.

During oral argument in this case, both counsel for Johnson 

and counsel for the State agreed that without any findings 

from the district court on this issue, there is no way for this 

court to properly perform its appellate function of review, and 

both agreed that if we concluded that the constitutional claim 

is properly before us in this appeal, then the matter would 
Decisions of the Nebraska Court of Appe

STATE v. JOHNSON 757

Cite as 22 Neb. App. 747 

need to be remanded for the district court to make findings 

concerning the factors set forth above. See State v. Vasquez, 

16 Neb. App. 406, 744 N.W.2d 500 (2008) (when trial court’s 

findings are incomplete, appellate court must remand for further consideration).

Because Johnson properly raised his claim asserting violation of his constitutional right to speedy trial and because the 

district court failed to address the issue and make appropriate findings concerning the factors set forth above, we must 

remand the matter to the district court for further consideration 

and findings.

3. Due Process Assertio

Finally, Johnson argues that the court erred in not finding a 

violation of his due process rights. It is not apparent what due 

process rights Johnson was asserting in this case, beyond his 

rights to speedy trial already discussed above.

[19,20] The Nebraska Supreme Court has noted that the 

Fifth Amendment has only a limited role to play in protecting against oppressive delay in the criminal context. State v. 

Hettle, 288 Neb. 288, 848 N.W.2d 582 (2014). It is the measure 

against which prearrest or preindictment delay is scrutinized. 

Id. In State v. Hettle, supra, the court noted that it was aware of 

no case in which the Fifth Amendment was applied to a claim 

for delay in bringing an accused to trial after arrest or indictment. Moreover, the due process claimant’s burden is a heavy 

one, requiring a showing of both substantial actual prejudice 

resulting from the delay and bad faith on the part of the government. State v. Hettle, supra.

In this case, Johnson has not demonstrated any violation of 

due process rights. This assertion on appeal is without merit.

V. CONCLUSION

We find no merit to Johnson’s assertion concerning his 

statutory speedy trial claim. With respect to his constitutional 

speedy trial claim, we remand the matter with directions for 

further consideration.

 Affirmed in part, and in

remanded with directi