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310 Nebraska Reports

STATE v. RIESSLAND

Cite as 310 Neb. 262

State of Nebraska, appellee, v. 

Nicole M. Riessland, appellant.

Filed October 1, 2021. No. S-20-884.

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. Statutes: Appeal and Error. Statutory interpretation presents a question of law, for which an appellate court has an obligation to reach an 

independent conclusion irrespective of the determination made by the 

court below.

3. Speedy Trial: Final Orders: Appeal and Error. An order denying 

a defendant’s nonfrivolous motion for absolute discharge on speedy 

trial grounds is a ruling affecting a substantial right in a special proceeding and is therefore final and appealable under Neb. Rev. Stat. 

§ 25-1902(1)(b) (Cum. Supp. 2020).

4. Speedy Trial: Waiver. The statutory right to a speedy trial is not unlimited and can be waived.

5. Speedy Trial: Waiver: Motions for Continuance. A defendant permanently waives his or her statutory speedy trial rights under Neb. Rev. 

Stat. § 29-1207(4)(b) (Reissue 2016) when an ultimately unsuccessful 

motion for discharge results in the continuance of a timely trial to a 

date outside the statutory 6-month period, as calculated on the date the 

motion for discharge was filed.

Appeal from the District Court for Buffalo County: John H. 

Marsh, Judge. Affirmed.

Brandon J. Dugan, Deputy Buffalo County Public Defender, 

for appellant. 

Douglas J. Peterson, Attorney General, and Kimberly A. 

Klein for appellee.

Nebraska Supreme Court Online Library

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

10/08/2021 01:08 AM CDT
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STATE v. RIESSLAND

Cite as 310 Neb. 262

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

Papik, and Freudenberg, JJ.

Papik, J.

After the district court overruled Nicole M. Riessland’s 

motion for discharge on statutory speedy trial grounds, finding 

that there remained 35 days in which the State could timely 

bring the matter to trial, Riessland did not appeal. Instead, 

Riessland waited 36 days and then filed a second motion for 

discharge. The district court did not grant the second motion, 

finding that, by filing her first motion, Riessland permanently 

waived her statutory speedy trial rights. This time, Riessland 

appealed.

Riessland concedes that under State v. Mortensen, 287 Neb. 

158, 841 N.W.2d 393 (2014), a defendant can permanently 

waive his or her statutory speedy trial rights by filing an unsuccessful motion for discharge, but contends that a defendant can 

do so only if he or she also pursues an appeal. We disagree. We 

hold that a defendant permanently waives his or her statutory 

speedy trial rights when an ultimately unsuccessful motion for 

discharge results in the continuance of a timely trial to a date 

outside the statutory 6-month period, as calculated on the date 

the motion for discharge was filed. And because that happened 

here, we affirm.

BACKGROUND

First Motion for Discharge.

Riessland was charged with a crime in August 2019. Trial 

was eventually scheduled for July 20, 2020. Two weeks before 

the trial, however, Riessland filed a motion for discharge, 

alleging that the State had failed to try her within the time 

required by Nebraska’s speedy trial statute. See Neb. Rev. Stat. 

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

The district court held a hearing on the motion for discharge on July 13, 2020, and overruled it on August 13. In 

its order, the district court found that between the filing of 
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STATE v. RIESSLAND

Cite as 310 Neb. 262

charges and Riessland’s motion for discharge, there were 

several periods of excludable time under § 29-1207(4). After 

adding the excludable time to the 6-month speedy trial period 

set forth in § 29-1207(1), the district court determined that, 

at the time Riessland filed her motion for discharge, the last 

day the State could have timely brought Riessland to trial was 

August 10.

The district court entered an order setting the matter for 

a jury trial to begin on September 21, 2020. Riessland did 

not appeal the district court’s denial of her first motion for 

discharge.

Second Motion for Discharge.

On September 18, 2020, Riessland filed a second motion 

for discharge. Again, Riessland contended that she was entitled 

to discharge because the State had failed to bring her to trial 

within the time required by the speedy trial statute.

In response to Riessland’s second motion for discharge, the 

State filed a document styled as a “Motion to Quash Motion 

for Discharge.” In it, the State argued that under Mortensen, 

supra, Riessland had permanently waived her statutory right to 

a speedy trial, because her first motion for discharge delayed 

trial beyond the 6-month statutory deadline. At the conclusion 

of the hearing on the parties’ respective motions, the district 

court stated that, because Riessland’s first motion for discharge 

“took [trial] outside the six months,” it would sustain the 

State’s motion. The district court also entered a written order 

stating that it had sustained the State’s motion and set the matter for a jury trial.

Riessland appealed, and we granted the State’s motion 

to bypass.

ASSIGNMENT OF ERROR

Riessland assigns that the district court erred by sustaining the State’s motion to quash and denying her motion for 

discharge.
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STATE v. RIESSLAND

Cite as 310 Neb. 262

STANDARD 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. Beitel, 296 Neb. 781, 895 N.W.2d 

710 (2017).

[2] Statutory interpretation presents a question of law, for 

which an appellate court has an obligation to reach an independent conclusion irrespective of the determination made by the 

court below. Id.

ANALYSIS

Appellate Jurisdiction.

[3] Before we consider Riessland’s speedy trial argument, 

we outline our reasoning as to why we have jurisdiction to do 

so. We have held on a number of occasions that an order denying a defendant’s nonfrivolous motion for absolute discharge 

on speedy trial grounds is a ruling affecting a substantial right 

in a special proceeding and is therefore final and appealable 

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

See, e.g., State v. Chapman, 307 Neb. 443, 949 N.W.2d 490 

(2020). Here, however, the district court did not expressly deny 

Riessland’s motion for discharge. Rather, its order purported to 

grant the State’s “Motion to Quash Motion for Discharge.”

We note that the State’s motion appears to have been at 

least unnecessary, if not unauthorized. We have concluded on 

a number of occasions that where a criminal procedure is not 

authorized by statute, it is unavailable in a criminal proceeding. State v. Rodriguez-Torres, 275 Neb. 363, 746 N.W.2d 686 

(2008). A Nebraska statute authorizes the use of motions to 

quash to challenge “defects in the form of the indictment or 

in the manner in which an offense is charged.” See Neb. Rev. 

Stat. § 29-1808 (Reissue 2016). Our law also recognizes that 

a party may file a motion to quash a subpoena. See, e.g., State 

v. Rice, 214 Neb. 518, 335 N.W.2d 269 (1983). We are not 

aware, however, of any authority suggesting that the State can 
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STATE v. RIESSLAND

Cite as 310 Neb. 262

or must file a motion to quash a defendant’s motion for absolute discharge if it believes the defendant has waived his or her 

statutory speedy trial rights. It would appear that all the State 

had to do to present its argument that Riessland had waived her 

speedy trial rights was to advance that argument in opposition 

to her motion for absolute discharge.

Even though the district court did not expressly rule on 

Riessland’s motion for absolute discharge and instead sustained the State’s “Motion to Quash Motion for Discharge,” 

we conclude that we have appellate jurisdiction. By granting 

the State’s motion and scheduling the case for trial, the district 

court made clear that it had determined that Riessland waived 

her statutory speedy trial rights and was not entitled to absolute 

discharge. We thus agree with both Riessland and the State 

that the district court implicitly overruled Riessland’s motion 

for discharge. Because the district court overruled Riessland’s 

motion for discharge and we find that Riessland’s motion was 

not frivolous, we have jurisdiction to consider her appeal. See

Chapman, supra.

Speedy Trial Waiver.

[4] The statutory right to a speedy trial is not unlimited and 

can be waived. State v. Mortensen, 287 Neb. 158, 841 N.W.2d 

393 (2014). This case turns entirely on whether Riessland 

waived her statutory speedy trial rights by filing her first 

motion for discharge. Relevant to that question, the speedy 

trial statute has an express waiver provision in § 29-1207(4)(b), 

which provides in part: “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.”

Interpreting this language, we have said, “[I]f a defendant 

requests a continuance that moves a trial date which has been 

set within the statutory 6-month period to a date that is outside the 6-month period, that request constitutes a permanent 
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STATE v. RIESSLAND

Cite as 310 Neb. 262

waiver of the statutory speedy trial right.” Mortensen, 287 Neb. 

at 165, 841 N.W.2d at 400. At issue in this appeal is whether 

Riessland, by filing her first motion for discharge, requested 

a continuance that moved a trial date set within the statutory 

6-month period to a date outside that period.

At the time Riessland filed her first motion for discharge, 

she did not expressly request a continuance of the scheduled 

trial. In Mortensen, however, we concluded that, at least in 

some circumstances, “[i]mplicit within a motion to discharge 

is a request to continue the proceeding.” 287 Neb. at 166, 841 

N.W.2d at 400. We reasoned that this was so, because a court 

must resolve a motion for discharge before the trial can begin. 

As we explained, if a motion for discharge “cannot be finally 

resolved without postponing trial, the motion serves no purpose 

unless it acts as a request for a continuance.” Id. at 166, 841 

N.W.2d at 401.

Riessland does not quarrel with our conclusion in Mortensen

that a motion for discharge can function as an implicit motion 

for continuance capable of permanently waiving a defendant’s 

statutory speedy trial rights under § 29-1207(4)(b). She instead 

contends that a motion for discharge functions as a motion 

for continuance for purposes of § 29-1207(4)(b) only if the 

trial court’s denial of the motion for discharge is affirmed 

on appeal. And because Riessland did not appeal the district 

court’s denial of her first motion for discharge, she contends 

that she did not waive her speedy trial rights.

Our opinion in Mortensen does contain some language 

about how the appeal of an order denying a statutory speedy 

trial motion for discharge will result in a continuance of the 

proceedings until the appeal is resolved. 287 Neb. at 166, 

841 N.W.2d at 400 (“[b]ecause an order denying discharge 

is appealable and a notice of appeal filed from the denial of 

discharge divests the trial court of jurisdiction, the motion for 

discharge has the immediate effect of continuing the proceedings”). We also made reference to an appeal at the conclusion 

of our opinion, when we said the following:
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STATE v. RIESSLAND

Cite as 310 Neb. 262

[A] defendant’s motion to discharge based on statutory 

speedy trial grounds will be deemed to be a waiver of that 

right under § 29-1207(4)(b) where (1) the filing of such 

motion results in the continuance of a timely trial to a date 

outside the statutory 6-month period, as calculated on the 

date the motion to discharge was filed, (2) discharge is 

denied, and (3) that denial is affirmed on appeal.

State v. Mortenson, 287 Neb. 158, 169-70, 841 N.W.2d 393, 

402-03 (2014) (emphasis supplied).

This language from Mortensen does not persuade us that a 

motion for discharge functions as a continuance for purposes 

of § 29-1207(4)(b) only when the defendant appeals the order 

denying the motion for discharge and that order is affirmed on 

appeal. The defendant in Mortensen appealed orders denying 

motions to discharge, and so we discussed the effect an appeal 

can have in that case. But that language merely supplemented 

our primary conclusion that, because a court must resolve a 

motion for discharge before trial can commence, such a motion 

carries with it an additional, implicit motion to continue trial 

to the extent necessary to resolve the motion for discharge. 

That additional, implicit motion to continue is no less present if the defendant later decides not to appeal the denial of a 

motion for discharge. And just as a motion for discharge that 

is followed by an appeal can require that trial be postponed 

until the appeal is resolved, so too can a motion for discharge 

that is not appealed require that trial be postponed until the 

motion is resolved. This case illustrates the point: Riessland’s 

trial was scheduled to begin on July 20, 2020, but did not start 

on that date, because her motion for discharge had not yet 

been resolved.

In response, Riessland argues that our focus in Mortensen 

was on the extended delay caused by the defendant’s appeals 

of orders denying his motions for discharge. She contends 

that, because she did not appeal the district court’s order 

denying her first motion for discharge, the delay in her case 

is not comparable to that in Mortensen. We do not dispute 
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STATE v. RIESSLAND

Cite as 310 Neb. 262

that the delay caused by Riessland’s first motion for discharge 

was significantly shorter than the delay in Mortensen. Nor 

do we dispute the general proposition that if a defendant 

appeals an order denying a motion for discharge, it will result 

in more delay than would occur if no appeal is filed. But 

§ 29-1207(4)(b) does not leave it to courts to determine on 

their own whether a delay was sufficiently long to trigger a 

waiver. The statute instead directs that waiver results “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.” § 29-1207(4)(b). 

The text of the statute does not differentiate between contin

uances that extend the trial date well beyond the 6-month 

deadline and those that extend the trial date barely past that 

mark; either will result in a waiver.

Riessland fares no better with her alternative argument. She 

suggests that if a motion for discharge can result in the permanent waiver of a defendant’s speedy trial rights even if the 

defendant does not appeal the denial of that motion, the rule 

we adopted in State v. Williams, 277 Neb. 133, 761 N.W.2d 

514 (2009), serves no purpose. In Williams, we required trial 

courts to specifically set forth, among other things, “the number of days remaining in which the defendant may be brought 

to trial after taking into consideration all excludable periods.” 

277 Neb. at 143-44, 761 N.W.2d at 524. But as we explained 

in State v. Lintz, 298 Neb. 103, 107, 902 N.W.2d 683, 687 

(2017), the findings set forth in Williams are required “to 

facilitate appellate review.” The findings continue to serve 

that purpose even if unsuccessful motions for discharge will 

generally result in the permanent waiver of statutory speedy 

trial rights.

[5] For these reasons, we see no principled basis upon 

which we could find, as Riessland urges, that an unsuccessful 

motion for discharge waives a defendant’s statutory speedy 

trial rights only if the order denying the motion for discharge 

is appealed. To give effect to the language of § 29-1207(4)(b) 
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STATE v. RIESSLAND

Cite as 310 Neb. 262

and our conclusion in Mortensen that a motion for discharge 

carries with it an implicit request to continue trial to the extent 

necessary to resolve the motion for discharge, we hold that a 

defendant permanently waives his or her statutory speedy trial 

rights when an ultimately unsuccessful motion for discharge 

results in the continuance of a timely trial to a date outside the 

statutory 6-month period, as calculated on the date the motion 

for discharge was filed.

Application of our holding to the facts of this case is straightforward. Riessland’s ultimately unsuccessful first motion for 

discharge required the district court to continue the trial scheduled for July 20, 2020. July 20 was within the statutory 6-month 

period. As the district court found in its order on Riessland’s 

first motion for discharge, as of the date Riessland filed her 

motion, the State could have timely brought her to trial by 

August 10. And because the district court did not decide the 

first motion for discharge until August 13, trial was continued 

to a date outside the statutory 6-month period, as calculated 

on the date the motion for discharge was filed. Accordingly, 

Riessland permanently waived her statutory speedy trial rights 

under § 29-1207(4)(b). Because she had no statutory speedy 

trial rights to assert when she filed her second motion for discharge, the district court did not err by overruling it.

CONCLUSION

For the foregoing reasons, we conclude that Riessland’s first 

motion for discharge permanently waived her statutory speedy 

trial rights and that thus, the district court did not err in overruling her second motion for discharge.

Affirmed.