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Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. WEBB

Cite as 311 Neb. 694

State of Nebraska, appellee, 

v. Yohan Webb, appellant.

___ N.W.2d ___

Filed June 3, 2022. No. S-21-356.

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. Courts: Appeal and Error. Both the district court and a higher appellate court generally review appeals from the county court for error 

appearing on the record.

3. Judgments: Appeal and Error. When reviewing a judgment for errors 

appearing on the record, an appellate court’s inquiry is whether the decision conforms to the law, is supported by competent evidence, and is 

neither arbitrary, capricious, nor unreasonable.

4. Appeal and Error. An appellate court independently reviews questions 

of law in appeals from the county court.

5. Speedy Trial. The statutory right to a speedy trial is set forth in Neb. 

Rev. Stat. §§ 29-1207 and 29-1208 (Reissue 2016).

6. ____. To calculate the time for statutory speedy trial purposes, a court 

must exclude the day the complaint was filed, count forward 6 months, 

back up 1 day, and then add any time excluded under Neb. Rev. Stat. 

§ 29-1207(4) (Reissue 2016) to determine the last day the defendant can 

be tried.

7. Speedy Trial: Proof. When calculating the time for speedy trial purposes, the State bears the burden to show, by a preponderance of the 

evidence, the applicability of one or more of the excluded time periods 

under Neb. Rev. Stat. § 29-1207(4) (Reissue 2016).

8. Statutes: Legislature: Intent. In construing a statute, a court must 

determine and give effect to the purpose and intent of the Legislature 

as ascertained from the entire language of the statute considered in its 

plain, ordinary, and popular sense.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

06/13/2022 01:06 AM CDT
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Nebraska Supreme Court Advance Sheets

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STATE v. WEBB

Cite as 311 Neb. 694

9. Statutes: Words and Phrases. The word “including,” when used in a 

statute, introduces examples, not an exhaustive list.

10. Constitutional Law: Speedy Trial: Final Orders. A pretrial order 

denying a motion for discharge on constitutional speedy trial grounds 

does not affect a substantial right in a special proceeding for purposes of 

Neb. Rev. Stat. § 25-1902(1)(b) (Cum. Supp. 2020).

Appeal from the District Court for Lancaster County, Robert 

R. Otte, Judge, on appeal thereto from the County Court for 

Lancaster County, Matthew L. Acton, Judge. Judgment of 

District Court affirmed in part, and in part dismissed.

Joshua D. Barber, of Barber & Barber, P.C., L.L.O., for 

appellant.

Douglas J. Peterson, Attorney General, and Stacy M. Foust 

for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Funke, J.

Yohan Webb appeals from an order of the district court 

for Lancaster County, Nebraska, which affirmed the county 

court’s decision to overrule Webb’s motion for absolute discharge on statutory and constitutional speedy trial grounds. We 

affirm in part, and in part dismiss.

BACKGROUND

The State of Nebraska filed a criminal complaint against 

Webb on June 3, 2019, in the county court for Lancaster 

County. On August 5, Webb filed several pretrial motions, 

including a motion for disclosure of intention to use evidence 

of other crimes, wrongs, or acts; a motion for disclosure of 

intention to use evidence of prior convictions for impeachment; a motion to allow Webb to wear civilian clothing when 

in the presence of the jury; a request for a Jackson v. Denno 1

1 Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964).
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STATE v. WEBB

Cite as 311 Neb. 694

hearing; a motion to remove Webb’s restraints when in the 

presence of the jury; a motion for sequestration of the witnesses; and a motion in limine. Webb’s filings did not include 

a notice of hearing and were not heard or ruled upon by 

the court.

On August 9, 2019, Webb filed a motion for a competency 

evaluation. At a hearing held September 5, the court found 

Webb incompetent to stand trial and ordered him committed 

to a psychiatric hospital for appropriate treatment to remove 

the disability. On February 5, 2020, a doctor opined Webb 

was competent to stand trial. The court set a hearing regarding 

Webb’s competency for March 17, but the matter was continued three times, until May 8, when the court found Webb 

competent to stand trial and scheduled the case for a jury trial 

during the court’s July 6 jury term.

On July 1, 2020, Webb requested appointment of substitute 

counsel and filed numerous pretrial motions, like those filed on 

August 5, 2019. On July 9, 2020, the court sustained Webb’s 

motion for substitute counsel and continued trial to August 5. 

Also on July 9, Webb filed a motion for discovery which, to 

date, has not been ruled upon. On August 5, Webb moved for 

a continuance, which the court granted. That same day, the 

court set the matter for a pretrial conference to be heard on 

August 10 and a jury trial for the September jury term. Webb 

failed to appear for the pretrial conference, and a bench warrant was issued for his arrest. Webb was arrested on October 

10. On October 24, Webb filed a motion for absolute discharge, 

alleging violations of his statutory and constitutional speedy 

trial rights.

The county court issued an order overruling Webb’s motion, 

generally finding that Webb’s August 5, 2019, motions 

had stopped the speedy trial clock under Neb. Rev. Stat. 

§ 29-1207(4)(a) (Reissue 2016). Webb appealed, and the district court affirmed, agreeing with the county court that Webb’s 

August 5 motions had stopped the speedy trial clock. For 

completeness, the district court found there were additional 
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STATE v. WEBB

Cite as 311 Neb. 694

time periods that would be excludable from the speedy trial 

calculation.

Webb appeals.

ASSIGNMENTS OF ERROR

Webb assigns, restated and consolidated, that the district 

court erred in affirming the county court’s decision, because 

(1) the State did not meet its burden of proving that time 

periods were excludable under § 29-1207(4), (2) time attributable to Webb’s competency proceedings should not have been 

excluded, and (3) the length of delays in bringing the case to 

trial violated Webb’s constitutional speedy trial rights.

STANDARD OF REVIEW

[1-4] 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 Both the district court and a higher appellate 

court generally review appeals from the county court for error 

appearing on the record. 3 When reviewing a judgment for 

errors appearing on the record, an appellate court’s inquiry is 

whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable. 4 However, an appellate court independently reviews 

questions of law in appeals from the county court. 5

ANALYSIS

[5] Webb contends that he was entitled to discharge because 

the State violated his statutory right to a speedy trial. The 

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

2 State v. Abernathy, 310 Neb. 880, 969 N.W.2d 871 (2022); State v. 

Billingsley, 309 Neb. 616, 961 N.W.2d 539 (2021).

3 State v. Collins, 307 Neb. 581, 950 N.W.2d 89 (2020).

4 Id.

5 Id.
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Nebraska Supreme Court Advance Sheets

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STATE v. WEBB

Cite as 311 Neb. 694

Neb. Rev. Stat. § 29-1208 (Reissue 2016). 6 Under § 29-1207(1), 

“[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.” Section 29-1207(2) 

generally provides that the “six-month period shall commence 

to run from the date the indictment is returned or the information filed.” This court has held that Nebraska’s speedy trial 

statutes are applicable to prosecutions in county court which 

are commenced by the filing of a criminal complaint. 7 Certain 

periods of delay are excluded from the speedy trial calculation. Section 29-1207(4)(a) excludes all time between the 

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

final disposition.

[6,7] To calculate the time for statutory speedy trial purposes, “‘a court must exclude the day the complaint was filed, 

count forward 6 months, back up 1 day, and then add any time 

excluded under § 29-1207(4) to determine the last day the 

defendant can be tried.’” 8 The State bears the burden to show, 

by a preponderance of the evidence, the applicability of one 

or more of the excluded time periods under § 29-1207(4). 9 If 

a defendant is “not brought to trial before the running of the 

time for trial as provided for in section 29-1207, as extended 

by excluded periods, he or she shall be entitled to his or her 

absolute discharge from the offense charged.” 10

The timeline in this matter is uncontroverted. The State 

filed a criminal complaint against Webb in county court on 

June 3, 2019. In county court, at the hearing on Webb’s motion 

for discharge, the court stated in oral findings that the original speedy trial deadline was December 3. As of August 2, 

6 State v. Lovvorn, 303 Neb. 844, 932 N.W.2d 64 (2019).

7 State v. Chapman, 307 Neb. 443, 949 N.W.2d 490 (2020).

8 Id. at 448, 949 N.W.2d at 493-94.

9 Billingsley, supra note 2.

10 § 29-1208.
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Nebraska Supreme Court Advance Sheets

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STATE v. WEBB

Cite as 311 Neb. 694

Webb’s trial was scheduled for the August 5 through 16 jury 

term. On August 5, Webb filed seven pretrial motions that 

remain pending. The court found, pursuant to § 29-1207(4)(a), 

that Webb’s pretrial motions stopped the speedy trial clock on 

August 5, meaning Webb had awaited trial for only 64 days. 

The court therefore overruled Webb’s motion for absolute 

discharge based on statutory speedy trial rights. Additionally, 

the court denied Webb’s motion based upon his constitutional 

speedy trial right.

Webb appealed to the district court. Webb’s amended statements of errors asserted the county court erred in (1) overruling his motion for discharge, (2) determining that the State met 

its burden of proof, and (3) applying the statutory grounds for 

excluding time under § 29-1207(4)(a). The district court concluded that Webb’s appeal “offer[ed] no authority and has no 

real argument disputing the County Court’s determination that 

the pretrial motions stopped the clock on August 5, 2019.” The 

district court agreed with the county court’s analysis that the 

August 5 pretrial motions stopped the speedy trial clock and 

affirmed the county court’s decision to overrule Webb’s motion 

for absolute discharge based on statutory and constitutional 

speedy trial rights.

On appeal from the district court’s order to this court, Webb 

contends his August 5, 2019, motions should not be considered 

when calculating excludable time because the motions were 

not specifically enumerated in § 29-1207(4)(a) and because the 

motions did not cause any delay in bringing his case to trial.

Section 29-1207(4)(a) provides:

(4) 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 
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Cite as 311 Neb. 694

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.

Webb’s argument that his August 5, 2019, motions did 

not cause any delay in bringing his case to trial is inapposite 

to our jurisprudence. Moreover, Webb candidly admitted in 

his brief that his argument has previously been rejected by 

this court.

We have consistently held the plain terms of § 29-1207(4)(a) 

dictate the exclusion of all time between the filing of a defendant’s pretrial motion and the final disposition of such motion, 

regardless of the delay of disposition. 11 Additionally, we have 

recognized 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. 12 Because a 

period of delay is generally synonymous with a period of time, 

excludable periods can result from delays in the progression 

of a criminal case regardless of whether the trial date was 

postponed or remained unchanged. 13 As such this argument is 

without merit.

Webb’s argument that because his motions were not the same 

type of motions as those specifically listed in § 29-1207(4)(a), 

the motions do not qualify as pretrial motions for purposes of 

calculating excludable time, is also without merit.

On August 5, 2019, Webb filed a motion for disclosure of 

intention to use evidence of other crimes, wrongs, or acts; 

11 State v. Washington, 269 Neb. 728, 695 N.W.2d 438 (2005), citing State v. 

Covey, 267 Neb. 210, 673 N.W.2d 208 (2004). See State v. Williams, 277 

Neb. 133, 761 N.W.2d 514 (2009).

12 Williams, supra note 11.

13 State v. Coomes, 309 Neb. 749, 962 N.W.2d 510 (2021). See, Lovvorn, 

supra note 6; State v. Feldhacker, 267 Neb. 145, 672 N.W.2d 627 (2004).
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Cite as 311 Neb. 694

a motion for disclosure of intention to use evidence of prior 

convictions for impeachment; a motion to allow Webb to wear 

civilian clothing when in the presence of the jury; a request 

for a Jackson v. Denno hearing 14; a motion to remove Webb’s 

restraints when in the presence of the jury; a motion for sequestration of the witnesses; and a motion in limine. Webb argues 

his August 5 motions are not governed by § 29-1207(4)(a), 

because they were not “motions to suppress evidence, motions 

to quash the indictment or information, demurrers and pleas 

in abatement, and motions for a change of venue.” Webb’s 

argument focuses on § 29-1207(4)(a)’s phrase “including, 

but not limited to” and argues that absent authority that the 

Legislature’s inclusion of the language “but not limited to” in 

reference to “other proceedings concerning the defendant” in 

contrast to its use of just the word “including” with respect to 

pretrial motions to the defendant shows an intent to establish 

an exclusive list of pretrial motions.

[8,9] In construing a statute, a court must determine and 

give effect to the purpose and intent of the Legislature as 

ascertained from the entire language of the statute considered 

in its plain, ordinary, and popular sense. 15 This court has recognized the conventional wisdom that the word “including” 

introduces examples, not an exhaustive list. 16 We have held 

that the word “include,” as used in a statute, connotes that the 

provided list of components is not exhaustive and that there are 

other items includable that are not specifically enumerated. 17

14 Jackson, supra note 1.

15 Ash Grove Cement Co. v. Nebraska Dept. of Rev., 306 Neb. 947, 947 

N.W.2d 731 (2020).

16 In re Interest of Seth C., 307 Neb. 862, 951 N.W.2d 135 (2020), citing 

Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of 

Legal Texts 132 (2012).

17 In re Interest of Seth C., supra note 16; State v. Jedlicka, 305 Neb. 52, 938 

N.W.2d 854 (2020); Stephens v. Stephens, 297 Neb. 188, 899 N.W.2d 582 

(2017), citing Samantar v. Yousuf, 560 U.S. 305, 130 S. Ct. 2278, 176 L. 

Ed. 2d 1047 (2010).
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STATE v. WEBB

Cite as 311 Neb. 694

The Legislature’s decision to pair the word “including” with 

a belt-and-suspenders phrase such as “but not limited to” does 

not alter the meaning of “including.” 18 “Including” indicates 

a nonexhaustive list, and adding “but not limited to” aids in 

emphasizing the nonexhaustive nature. 19 “‘Even though the 

word including itself means that the list is merely exemplary 

and not exhaustive, the courts have not invariably so held. 

So the longer, more explicit variations are necessary in the 

eyes of many drafters.’” 20 “Even so, the commonness of these 

belts-and-suspenders phrases does not lessen the exemplariness of include.” 21 Thus, based on the plain and ordinary 

meaning of the word “including,” under § 29-1207(4)(a), we 

reject Webb’s argument.

We again hold that the pretrial motions listed under 

§ 29-1207(4)(a) are provided as examples and are not intended 

to be an exhaustive list.

Furthermore, Nebraska appellate courts have held in 

numerous cases that pretrial motions not specifically enumerated in § 29-1207(4)(a) still constitute excludable time. 22

18 See Timberlake v. Douglas County, 291 Neb. 387, 865 N.W.2d 788 (2015), 

citing Black’s Law Dictionary 880 (10th ed. 2014).

19 See, U.S. v. Philip Morris USA Inc., 566 F.3d 1095 (D.C. Cir. 2009); Spine 

Soc. v. Health Benefits Bd., 453 N.J. Super. 94, 180 A.3d 333 (2018).

20 Scalia & Garner, supra note 16 at 133, quoting Garner’s Dictionary of 

Legal Usage 439-40 (3d ed. 2011) (emphasis in original).

21 Id. (emphasis in original).

22 See, State v. Smith, 286 Neb. 856, 839 N.W.2d 333 (2013) (defendant’s 

pretrial motion to sever tolled speedy trial period); Williams, supra note 11 

(discovery motion created excludable period for speedy trial calculation); 

State v. Baker, 264 Neb. 867, 652 N.W.2d 612 (2002) (motion to discharge 

was excludable time); State v. Turner, 252 Neb. 620, 564 N.W.2d 231 

(1997) (motions for DNA testing and private investigator were excludable 

for speedy trial calculation); State v. Shipler, 17 Neb. App. 66, 758 

N.W.2d 41 (2008) (25 days attributable to defendant’s motion in limine 

were excludable); State v. Summage, No. A-19-1129, 2020 WL 6589973 

(Neb. App. Nov. 5, 2020) (motion for production of victim’s mental health 

records tolled speedy trial time).
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We have also said that “‘[w]here a statute has been judicially 

construed and that construction has not evoked an amendment, 

it will be presumed that the Legislature has acquiesced in the 

court’s determination of the Legislature’s intent.’” 23 As such, 

we are not persuaded by Webb’s argument.

The district court and the county court correctly found that 

§ 29-1207(4)(a) applies to Webb’s August 5, 2019, motions and 

that Webb’s motions stopped the speedy trial clock on the date 

he filed them. Because the undisputed record shows the State 

carried its burden of showing an excludable time period under 

§ 29-1207(4), we affirm the analysis and dispositions of the 

district court and the county court.

Webb asserts further arguments regarding his statutory 

speedy trial rights. However, given our conclusion that Webb’s 

speedy trial clock stopped on August 5, 2019, and calculation 

that only 64 days have passed since the filing of the criminal 

complaint, we need not address Webb’s remaining arguments. 

An appellate court is not obligated to engage in an analysis 

that is not necessary to adjudicate the case and controversy 

before it. 24

[10] Lastly, Webb contends lengthy delays in competency 

proceedings violated his constitutional speedy trial rights. 

“[T]he constitutional right to a speedy trial and the statutory implementation of that right exist independently of each 

other.” 25 As we recently held, a pretrial order denying a 

motion for discharge on constitutional speedy trial grounds 

does not affect a substantial right in a special proceeding for 

purposes of Neb. Rev. Stat. § 25-1902(1)(b) (Cum. Supp. 

2020). 26 We lack appellate jurisdiction to review Webb’s 

23 State v. Coble, 299 Neb. 434, 445, 908 N.W.2d 646, 655 (2018).

24 State v. Parnell, 305 Neb. 932, 943 N.W.2d 678 (2020).

25 State v. Brooks, 285 Neb. 640, 643, 828 N.W.2d 496, 499 (2013).

26 State v. Moody, ante p. 143, 970 N.W.2d 770 (2022); Abernathy, supra

note 2.
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claim that he was entitled to absolute discharge on constitutional speedy trial grounds. We therefore dismiss that aspect 

of Webb’s appeal.

CONCLUSION

For the reasons stated herein, we affirm in part, and in 

part dismiss.

Affirmed in part, and in part dismissed.