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STATE V. MOORE

Cite as 312 Neb. 263

State of Nebraska, appellee, v. 

Gregory Moore, appellant.

___ N.W.2d ___

Filed August 19, 2022. No. S-21-755.

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.

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

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

4. ____. Periods excluded in computing the time for trial are identified in 

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

5. ____. When calculating the time for speedy trial purposes, the State 

bears the burden to show, by the greater weight of the evidence, that one 

or more of the excluded time periods under Neb. Rev. Stat. § 29-1207(4) 

(Reissue 2016) are applicable.

6. ____. Nothing in the text of Neb. Rev. Stat. § 29-1207(4)(a) (Reissue 

2016) requires that the “other proceedings concerning the defendant” 

occur in the case in which the defendant alleges a statutory speedy trial 

violation.

7. ____. Broadly construed, Neb. Rev. Stat. § 29-1207(4)(a) (Reissue 

2016) applies to proceedings in the pending case as well as to proceedings in other pending cases.

8. Appeal and Error. An appellate court is not obligated to engage in an 

analysis that is not necessary to adjudicate the case and controversy 

before it.

Nebraska Supreme Court Online Library

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

11/10/2022 08:06 AM CST
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STATE V. MOORE

Cite as 312 Neb. 263

Appeal from the District Court for Scotts Bluff County: 

Andrea D. Miller, Judge. Affirmed.

Kelly S. Breen, of Nebraska Commission on Public 

Advocacy, for appellant.

Douglas J. Peterson, Attorney General, and Jordan Osborne 

for appellee.

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

Papik, and Freudenberg, JJ.

Cassel, J.

INTRODUCTION

Gregory Moore appeals from the overruling of his motion 

for discharge based upon Nebraska’s speedy trial statutes. 1

Moore contends the district court erred in excluding delay 

related to his competency proceedings in a different case and 

to his filing a motion to continue an arraignment. Because the 

court did not err in excluding delay due to Moore’s incompetency to stand trial, we affirm.

BACKGROUND

Information and Procedural History

This appeal originates from proceedings in the district court 

for Scotts Bluff County in case No. CR20-730. On December 

16, 2020, the State filed an information charging Moore with 

second degree murder and use of a deadly weapon to commit 

a felony for events occurring on November 25. The information was filed on the same day that the same district court, 

in case No. CR20-249, an otherwise unrelated felony case, 

entered an order determining that Moore was incompetent to 

stand trial.

On December 17, 2020, Moore filed a motion to continue the arraignment set for the next day. The motion stated 

1 See Neb. Rev. Stat. §§ 29-1205 to 29-1209 (Reissue 2016).
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Cite as 312 Neb. 263

that within the next 2 weeks, Moore’s counsel would file 

a written not guilty plea and waiver of appearance. The 

motion requested that the matter be set for a status hearing in 

February 2021.

On December 18, 2020, the court ordered that the written 

plea be filed within 2 weeks or Moore “shall appear for an 

arraignment on December 31.” The court’s order granting the 

continuance of the arraignment struck through proposed language stating “and defendant is ordered to appear on the ___ 

day of February, 2021 at ____ _.m. for Status Hearing.”

On December 23, 2020, Moore filed his written not guilty 

plea. He requested that the court schedule a status hearing 

within 60 days, but he did not send a proposed order for the 

court to sign. The court did not set a status hearing.

Nearly 6 months later, on June 15, 2021, the State moved 

for a status conference. The State attached to its motion a 

December 16, 2020, order in case No. CR20-249 which found 

Moore not competent to stand trial. According to the order, 

Moore was to be committed to the Lincoln Regional Center 

(LRC) for treatment to restore competency. The order further 

provided that the court would hold a review hearing to assess 

Moore’s competency every 60 days until either the disability 

was removed or other disposition of Moore had been made. 

The court scheduled the status conference for a hearing on 

July 14.

At the beginning of the July 14, 2021, hearing, the court 

stated that it was holding status hearings in both cases Nos. 

CR20-249 and CR20-730. The court recited that Moore had 

been sent to the LRC for a determination of competency, that 

he had been evaluated, and that the court had received a July 

1 report. According to the report, Moore remained incompetent to stand trial.

In case No. CR20-249, the court received as evidence the 

July 2021 report from the LRC. The court found that Moore 

was continuing to receive treatment at the LRC, noted the 

recommendation that Moore remain at the LRC “as he is still 
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Cite as 312 Neb. 263

at this point not competent to stand trial,” stated that it would 

continue to order his commitment to the LRC, and scheduled a 

review hearing for September 14.

Turning to case No. CR20-730, the State offered the same 

July 2021 report from the LRC. Moore’s counsel lodged a 

relevancy objection, observing that competency proceedings 

had not been instituted in case No. CR20-730. According 

to Moore’s counsel, Moore had maintained that he acted in 

self-defense at the time of the crimes charged in the instant 

case. Moore’s counsel further stated that Moore understood 

the function of a trial and the duties of the judge, prosecutor, and jury. The court overruled the objection and received 

the report.

Motion for Discharge and Hearing

Prior to the status hearing, on July 6, 2021, Moore filed a 

motion for discharge. In August, the court held an evidentiary 

hearing on the motion. Moore appeared by video from the 

LRC. The parties collectively offered six exhibits, which the 

court received.

One exhibit contained a certified copy of the file in case 

No. CR20-249. That exhibit showed that in April 2020, the 

State filed an information in Scotts Bluff County District Court 

charging Moore with terroristic threats, third degree assault, 

and use of a deadly weapon to commit a felony. Pursuant to 

Moore’s suggestion of incompetency, the court ordered an 

evaluation and later set a competency hearing for December 

15. The exhibit contained the court’s December 16 order finding Moore incompetent to stand trial.

The court received into evidence a November 25, 2020, 

evaluation of Moore. The court had ordered the evaluation 

to address Moore’s capacity to proceed to trial in case No. 

CR20-249. The evaluator opined:

Moore currently lacks the ability to understand the factual 

components of the legal proceedings, he does not presently maintain sufficient ability to apply that knowledge 
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to his own case in a rational manner or meaningfully 

assist his attorney in his own defense as a result of his 

ongoing symptoms of mental illness. 

(Emphasis in original.)

District Court’s Order

The court overruled Moore’s motion for discharge. It excluded 

from the speedy trial calculation the time from December 17, 

2020, through July 14, 2021, under § 29-1207(4)(b) and (f). 

The court stated that Moore requested a continuance but did 

not provide a written order approving the waiver, nor did 

Moore file anything asking that the waiver be approved. Thus, 

the court found that the delay resulted from “Moore’s inaction to file the acceptance of waiver and/or failure to set a 

status hearing.”

The court also excluded the time between December 17, 

2020, through the date of its September 13, 2021, order under 

§ 29-1207(4)(a) and (d). It determined that the State showed 

Moore was found to be incompetent to stand trial in case 

No. CR20-249. The court reasoned that because Moore had 

been found incompetent in that case, he could not “argue that 

he is competent to stand trial in this case.” The court further 

stated that Moore’s commitment to the LRC by the court’s 

order in case No. CR20-249 made him “unavailable” in the 

instant case.

Moore filed a timely appeal. We granted the State’s petition 

to bypass review by the Nebraska Court of Appeals. 2

ASSIGNMENTS OF ERROR

Moore assigns, reordered, that the court erred in (1) “holding that the time delay herein was the result of other proceedings and unavailability of [Moore] caused by competency 

proceedings instituted in [case No. CR20-249]” and (2) “holding that the time delay herein was caused by [Moore’s] filing 

2 See Neb. Rev. Stat. § 24-1106(2) (Cum. Supp. 2020).
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of a motion to continue the arraignment set for December 18, 

2020[,] and subsequently filing a written waiver of appearance 

and not guilty plea on December 23.”

STANDARD OF REVIEW

[1] 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. 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

ANALYSIS

Speedy Trial Principles

[3] The statutory right to a speedy trial is set forth in 

§§ 29-1207 and 29-1208. 5 Under these statutes, criminal 

defendants must be brought to trial by a 6-month deadline, 

but certain periods of delay are excluded and thus can extend 

the deadline. 6 If a defendant is not brought to trial by the 

6-month speedy trial deadline, as extended by any excluded 

periods, he or she is entitled to absolute discharge from the 

offense charged and for any other offense required by law to 

be joined with that offense. 7

[4,5] Periods excluded in computing the time for trial are 

identified in § 29-1207(4). When calculating the time for 

speedy trial purposes, the State bears the burden to show, by 

the greater weight of the evidence, that one or more of the 

3 State v. Bixby, 311 Neb. 110, 971 N.W.2d 120 (2022).

4 Id.

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

6 Id.

7 Id.
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excluded time periods under § 29-1207(4) are applicable. 8

Pertinent to this appeal, the following periods are excludable:

(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;

(b) The period of delay resulting from a continuance 

granted at the request or with the consent of the defendant 

or his or her counsel. A defendant without counsel shall 

not be deemed to have consented to a continuance unless 

he or she has been advised by the court of his or her right 

to a speedy trial and the effect of his or her consent. A 

defendant who has sought and obtained a continuance 

which is indefinite has an affirmative duty to end the continuance by giving notice of request for trial or the court 

can end the continuance by setting a trial date. When the 

court ends an indefinite continuance by setting a trial 

date, the excludable period resulting from the indefinite 

continuance ends on the date for which trial commences. 

A defendant is deemed to have waived his or her right 

to speedy trial when the period of delay resulting from a 

continuance granted at the request of the defendant or his 

or her counsel extends the trial date beyond the statutory 

six-month period;

. . . .

(d) The period of delay resulting from the absence or 

unavailability of the defendant;

8 State v. Hernandez, 309 Neb. 299, 959 N.W.2d 769 (2021).
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. . . .

(f) Other periods of delay not specifically enumerated 

in this section, but only if the court finds that they are for 

good cause. 9

We consider the potential application of these subsections in 

resolving whether the court erred in overruling Moore’s motion 

for discharge.

Overruling of Motion for Discharge

The district court excluded two periods of delay in computing the time for trial. Each period began running on the day 

following the filing of the information and remained running 

when Moore filed his motion for discharge. We start with the 

court’s finding pertaining to competency proceedings in case 

No. CR20-249.

Moore argues that the court erred in finding that the delay 

was both the result of other proceedings and unavailability 

caused by competency proceedings, when those proceedings 

were instituted in a different case. We disagree. As explained 

below, the district court did not err in finding the delay excludable under § 29-1207(4)(a).

Delays associated with competency are typically excluded 

from the speedy trial clock. 10 When a person becomes mentally incompetent after committing an offense, Nebraska law 

forbids trying the person for the offense until the disability 

is removed. 11 Thus, it would be illogical to force the State to 

bring an incompetent defendant to trial within 6 months when 

the defendant could not be subjected to a criminal trial. The 

twist in this case is that the competency proceedings and finding of incompetency occurred in a different criminal case.

9 § 29-1207(4).

10 See § 29-1207(4)(a).

11 See Neb. Rev. Stat. § 29-1822(1) (Cum. Supp. 2020). See, also, Cooper 

v. Oklahoma, 517 U.S. 348, 116 S. Ct. 1373, 134 L. Ed. 2d 498 (1996) 

(criminal trial of incompetent defendant violates due process).
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In considering whether time associated with competency 

proceedings in a different case is excludable, we start with the 

plain text of § 29-1207(4)(a). It provides that “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” is an excludable period of time for speedy 

trial purposes. 12

[6] Nothing in the text of § 29-1207(4)(a) requires that the 

“other proceedings concerning the defendant” occur in the 

case in which the defendant alleges a statutory speedy trial 

violation. By including the clause “the time consumed in the 

trial of other charges against the defendant,” § 29-1207(4)(a) 

specifically contemplates excluding time due to proceedings in 

a different case.

[7] Though not in the context of competency proceedings, 

we have considered the impact of a delay related to a defendant’s other criminal case on his or her speedy trial rights. In 

State v. Blocher,

 13 we affirmed the district court’s determination that time the defendant spent incarcerated in a different 

county on different charges was properly attributable to her 

under § 29-1207(4)(d). We observed that at least a portion of 

the same period—time when the defendant was incarcerated in 

the other county during the pendency of charges against her—

would be properly excluded under § 29-1207(4)(a). We stated, 

“Broadly construed, § 29-1207(4)(a) applies to proceedings in 

the pending case as well as to proceedings in other pending 

cases . . . .” 14

Here, the State adduced evidence of Moore’s incompetency 

to stand trial. The certified copy of the transcript in case No. 

CR20-249, received during the hearing on the motion for 

12 § 29-1207(4)(a) (emphasis supplied).

13 State v. Blocher, 307 Neb. 874, 951 N.W.2d 499 (2020).

14 Id. at 881, 951 N.W.2d at 504.
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discharge, contained the district court’s December 16, 2020, 

order finding that Moore was not competent to stand trial and 

committing him to the LRC. It also included the court’s July 

19, 2021, journal entry which stated that it reviewed the competency report and which set case No. CR20-249 for a further 

competency review hearing in September. Moreover, during 

the July 14 status hearing, the court received in the instant case 

the July 2021 report opining that Moore was not competent to 

stand trial.

We are also mindful of the particular circumstances of this 

case related to the incompetency finding. On the same day that 

the State filed in the district court for Scotts Bluff County the 

information against Moore in the instant case, the same district 

court entered an order finding Moore to be incompetent in case 

No. CR20-249. The record shows that the same judge handled 

both of the criminal cases against Moore. While perhaps the 

State could have taken additional steps to establish Moore’s 

incompetency for purposes of the record in the instant case, 

the court and counsel for both parties knew that the court 

committed Moore to the LRC and that the court found Moore 

incompetent to stand trial at or about the time the instant case 

was bound over to district court.

Under the facts of this case, the State proved by the greater 

weight of the evidence that time should be excluded under 

§ 29-1207(4)(a). We conclude the court properly excluded 

from the speedy trial clock the period of delay from December 

17, 2020, through the time of the court’s September 13, 2021, 

order due to Moore’s incompetency to stand trial.

[8] We need not resolve whether the district court properly determined that the same period of delay and that a 

shorter period of delay were also excluded from the speedy 

trial calculation. Moore challenges findings that the delay 

from December 17, 2020, through September 13, 2021, was 

excluded due to his “absence or unavailability” and that the 

delay from December 17, 2020, through July 14, 2021, was 

caused by Moore. But even if the court erred with respect to 
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either of those periods of delay, which we do not suggest or 

imply, the same period was already properly excluded due to 

Moore’s incompetency to stand trial. An appellate court is not 

obligated to engage in an analysis that is not necessary to adjudicate the case and controversy before it. 15

CONCLUSION

The district court found Moore incompetent to stand trial 

in a different case on or about the time that the State filed the 

information in the instant case in the same court. We conclude 

that the State proved by the greater weight of the evidence 

that the period during which Moore was incompetent to stand 

trial should be excluded in computing the time for trial in the 

instant case. Accordingly, we find no error in the overruling 

of Moore’s motion for discharge, and we affirm the district 

court’s order.

Affirmed.

15 Nebraska Republican Party v. Shively, 311 Neb. 160, 971 N.W.2d 128 

(2022).

Miller-Lerman, J., concurring.

I concur in the majority opinion of the court and write 

separately only to address some confusion, the resolution of 

which is not necessary to the rationale upon which this speedy 

trial appeal is decided but could be impactful under a different 

set of facts. The confusion arises as to when the district court 

accepted Moore’s written plea of not guilty submitted under 

Neb. Rev. Stat. § 29-4206 (Reissue 2016) and thus waived 

arraignment and ended any continuances sought in relation 

thereto. Specifically, I think it prudent to counsel trial courts 

against being casual regarding the court’s duty to accept (or 

reject) a written plea tendered under § 29-4206.

Section 29-4206(1) provides, inter alia, that “district courts 

may accept a written . . . plea of not guilty.” In this case, on 

December 18, 2020, the court ordered, inter alia, that a written 

plea be filed within 2 weeks. On December 23, Moore filed a 
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written not guilty plea. In its September 13, 2021, order denying Moore’s motion for discharge, the district court stated, 

inter alia, that although Moore filed his written not guilty plea, 

after doing so, he “did nothing to gain approval of the District 

Court” and that such delay is attributable to “Moore’s inaction.” Although it may be the custom in trial courts to assume 

the written not guilty plea has been accepted and only rejection 

of written not guilty pleas are done in writing, I do not think 

this custom is faithful to the statute and results in ambiguity, 

and the absence of a ruling should not be chargeable against 

the defendant.

Apart from circumstantial indications, we do not know when 

Moore’s not guilty plea was accepted, and the answer does not 

change the outcome under the facts and our resolution of this 

case. However, and especially where written pleas are invited, 

I would urge the trial courts to make a ruling under § 29-4206 

on a date certain indicating when the written not guilty plea 

was accepted—or perhaps rejected—so that the parties and 

the trial court can incorporate such date in their speedy trial 

calculations, which would be especially useful in another case 

where the date matters.

Heavican, C.J., joins in this concurrence.