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Nebraska Court of Appeals Advance Sheets

31 Nebraska Appellate Reports

STATE V. RAMO

Cite as 31 Neb. App. 434

State of Nebraska, appellee, v. 

Eric L. Ramos, appellant.

___ N.W.2d ___

Filed October 25, 2022. No. A-21-913.

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. A criminal defendant’s statutory speedy trial rights are 

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

4. Speedy Trial: Appeal and Error. After a mistrial has been granted, the 

filing of a plea in bar tolls the speedy trial clock from the date of the 

initial filing until final disposition. Such tolling would include the time 

from the district court’s decision on the motion through the filing of the 

mandate on remand if any interlocutory appeal is taken.

5. Criminal Law: Venue. Neb. Rev. Stat. § 29-1301 (Supp. 2021) provides that a court can transfer a criminal proceeding to any other district 

or county in the state upon motion of the defendant.

6. Speedy Trial: Waiver. A defendant waives the statutory right to a 

speedy trial under Neb. Rev. Stat. § 29-1207 (Reissue 2016) by filing 

an unsuccessful motion to discharge that necessitates continuing the trial 

beyond the 6-month period.

7. 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 and therefore 

is not a final, appealable order.

8. Appeal and Error. When an issue is raised for the first time in an 

appellate court, it will be disregarded inasmuch as a lower court cannot 

Nebraska Supreme Court Online Library

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

10/25/2022 09:05 AM CDT
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STATE V. RAMO

Cite as 31 Neb. App. 434

commit error in resolving an issue never presented and submitted to it 

for disposition.

Appeal from the District Court for Johnson County: Vicky 

L. Johnson, Judge. Affirmed in part, and in part dismissed.

Timothy S. Noerrlinger, of Naylor & Rappl Law Office, for 

appellant.

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

for appellee.

Pirtle, Chief Judge, and Bishop and Arterburn, Judges.

Arterburn, Judge.

INTRODUCTION

Eric L. Ramos appeals the order of the district court for 

Johnson County which overruled his motion for absolute discharge wherein he alleged violations of his statutory and constitutional rights to speedy trial. Ramos claims on appeal that 

the district court incorrectly calculated the speedy trial deadline 

for his retrial after the first trial ended in a mistrial. Upon our 

review, we find that Ramos’ motion for absolute discharge was 

premature in that time remained on his speedy trial clock at 

the time the motion was filed. As such, although our reasoning differs from that of the district court, we do not find error 

in the district court’s ultimate decision to deny Ramos’ motion 

for absolute discharge on statutory grounds. We further find 

that we do not have jurisdiction to consider whether Ramos’ 

constitutional speedy trial rights were violated.

BACKGROUND

On October 19, 2017, the State filed an information charging Ramos with first degree murder, a Class I or IA felony; 

assault in the first degree, a Class II felony; two counts of 

use of a weapon to commit a felony, each a Class II felony; 

and tampering or destruction of evidence, a Class IV felony. 

In addition, the State alleged that Ramos was a habitual 
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Cite as 31 Neb. App. 434

criminal. Subsequently, the State amended the information by 

dismissing the charges of assault in the first degree and the 

corresponding count of use of a weapon to commit a felony. 

The charges alleged by the State stemmed from an incident 

which occurred at the Tecumseh State Correctional Institution 

on March 2, 2017. On that date, Ramos was an inmate at 

that institution.

On August 6, 2018, a jury was impaneled and the trial on 

Ramos’ charges began. One week later, on August 13, Ramos 

asserted a motion for mistrial based on the conduct of one of 

the State’s witnesses who was alleged to have violated the 

district court’s sequestration order. The motion for mistrial was 

granted by the district court that same day.

On August 23, 2018, a telephonic hearing was held. A 

verbatim transcription of this hearing is not included in our 

record. However, based on other information included within 

a stipulation filed by the State and a subsequent order entered 

by the court, during this hearing, the State indicated its intention to retry Ramos. The district court then scheduled a new 

trial to commence on January 3, 2019. During that same tele

phonic hearing, Ramos apparently made an oral motion to 

change the venue for the rescheduled trial. One week later, 

on August 30, the State filed a stipulation agreeing that the 

trial should be moved from Johnson County. On September 

5, the district court entered an order granting the motion to 

change the venue of the trial. The second trial was to be held 

in Saline County.

On November 2, 2018, prior to the scheduled start of trial, 

Ramos filed a plea in bar, alleging that the State should be 

barred from retrying him because it had engaged in prosecutorial misconduct during the first trial. Specifically, Ramos 

alleged that the State had intentionally provoked or goaded 

him into filing for a mistrial. Ramos asserted that, as a result 

of the State’s misconduct, retrial of the case was barred 

by principles of double jeopardy. The district court denied 

Ramos’ plea in bar on August 30, 2019. Ramos appealed 
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Cite as 31 Neb. App. 434

from the district court’s decision on September 29. This court 

affirmed the district court’s denial of the plea in bar. The 

district court spread our mandate on March 31, 2021. At this 

same time, the court appointed Ramos with new cocounsel 

because one of his trial attorneys had been appointed to a 

judgeship while Ramos’ appeal from the denial of his plea in 

bar had been pending. The district court scheduled the new 

trial to commence on August 10. The State believed the trial 

would last 3 to 4 weeks.

On July 21, 2021, a few weeks before trial was scheduled 

to begin, Ramos filed a motion for absolute discharge, alleging a violation of both his statutory and constitutional rights to 

a speedy trial. At a hearing on the motion for discharge held 

on July 29, Ramos argued that the speedy trial deadline had 

passed on June 17. The State argued that the speedy trial deadline had not yet passed as of the filing of Ramos’ motion and 

that therefore, the motion was premature. The district court 

took the matter under advisement and on October 29 issued an 

order denying Ramos’ motion for discharge.

In the order, the district court found that the speedy trial 

clock should be reset to commence on March 29, 2021, which 

is the date the mandate from this court regarding Ramos’ plea 

in bar was received. From March 29, the district court calculated that the new deadline to commence Ramos’ trial would 

extend 6 months to September 29. Because trial was scheduled 

to begin on August 10, the district court held that Ramos’ 

motion for discharge was premature and that his statutory and 

constitutional rights had not been violated. Given the district 

court’s findings in this regard, it did not make explicit rulings 

on any excludable time.

Ramos appeals the district court’s order which denied his 

motion for discharge.

ASSIGNMENTS OF ERROR

On appeal, Ramos claims that the district court erred when 

it overruled his motion for discharge. Specifically, he alleges 
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STATE V. RAMO

Cite as 31 Neb. App. 434

that contrary to the district court’s findings, both his statutory 

and his constitutional rights to a speedy trial were violated. He 

also claims that as a result of the delay in bringing him to trial, 

his right to due process was violated.

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. State v. Bixby, 311 Neb. 110, 971 N.W.2d 

120 (2022).

[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. Id.

ANALYSIS

Statutory Right to Speedy Trial.

[3] A criminal defendant’s statutory speedy trial rights are 

governed by Neb. Rev. Stat. §§ 29-1207 and 29-1208 (Reissue 

2016). As pertinent to this appeal, § 29-1207 provides, in relevant part:

(1) Every 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.

(2) Such six-month period shall commence to run from 

the date the indictment is returned or the information 

filed . . . .

(3) If a defendant is to be tried again following a mistrial, an order for a new trial, or an appeal or collateral 

attack, such period shall commence to run from the date 

of the mistrial, order granting a new trial, or the mandate 

on remand.

(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 
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STATE V. RAMO

Cite as 31 Neb. App. 434

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;

. . . .

(f) Other periods of delay not specifically enumerated 

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

good cause.

Our first task is to determine when the 6-month period 

delineated in § 29-1207 commenced: either at the time the 

district court granted the mistrial or at the time our mandate 

issued affirming the district court’s denial of Ramos’ plea in 

bar. In its order denying Ramos’ motion for absolute discharge, 

the district court found that the 6-month period started anew 

upon the issuance of our mandate affirming the court’s decision to deny Ramos’ plea in bar. As such, the court calculated 

the last day to bring Ramos to trial using the date it received 

our mandate, March 29, 2021, as its starting point. Subsequent 

to the issuance of the district court’s order, the Nebraska 

Supreme Court addressed this issue in State v. Bixby, supra. 

Based on that opinion, we find the district court’s calculation 

to be in error.

[4] The procedural background of State v. Bixby, supra, is 

similar to the procedural background in this case. Therein, 

Clay Younglove Bixby was granted a mistrial in the middle 

of his first trial. After being granted the mistrial, he filed a 

plea in bar arguing that the State should not be able to retry 

his case. The district court denied the plea in bar, and Bixby 

subsequently appealed from that decision. This court affirmed 

the denial of the plea in bar, and the matter was remanded 

back to the district court. Upon remand, a new trial date was 

set. Before the trial could occur, Bixby filed a motion for 
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STATE V. RAMO

Cite as 31 Neb. App. 434

absolute discharge, which was ultimately granted by the district court. In its calculations, the district court found that the 

new 6-month speedy trial period started upon the granting of 

the mistrial, not upon the issuance of our mandate regarding 

the plea in bar. While the Supreme Court reversed the district 

court’s decision to grant Bixby’s motion for absolute discharge, it accepted that portion of the district court’s speedy 

trial calculation which restarted the 6-month period upon 

the grant of the mistrial. The Supreme Court held that the 

filing of the plea in bar merely tolled the speedy trial clock 

from the first date of filing until the mandate on remand was 

issued after Bixby’s interlocutory appeal. As such, Bixby’s 

appeal from the denial of his plea in bar and our subsequent 

mandate did not affect the date that the 6-month period began 

to run.

Applying the Supreme Court’s holding in State v. Bixby, 311 

Neb. 110, 971 N.W.2d 120 (2022), to the facts of this case, we 

find that the 6-month speedy trial period commenced on August 

13, 2018, the day the district court granted Ramos’ motion for 

a mistrial. Excluding that day, counting forward 6 months, and 

backing up 1 day, the State was required to retry Ramos on or 

before February 13, 2019, unless additional excludable time 

periods were proved.

We first apply the holding of State v. Bixby, supra, to the 

plea in bar filed herein. The speedy trial clock was tolled 

from November 2, 2018, when Ramos filed his plea in bar, 

through March 31, 2021, when our mandate was spread in the 

district court. Accordingly, 880 days were excludable from the 

6-month speedy trial period. Adding those 880 excludable days 

to February 13, 2019, the new speedy trial deadline was July 

13, 2021.

We note that the 880 days excluded includes the 29 days 

which elapsed from the date the district court overruled the 

plea in bar until Ramos filed his notice of appeal. In his brief, 

Ramos argues that these 29 days should not be excludable and 

should count against the State. However, in State v. Bixby, 
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STATE V. RAMO

Cite as 31 Neb. App. 434

supra, decided shortly after Ramos’ brief was filed herein, the 

Supreme Court directly addressed this issue and found that 

the time which ran from the date the plea in bar was overruled 

until the date Bixby filed his notice of appeal was excluded 

for purposes of the statutory speedy trial calculation. The 

court found that by choosing to appeal the denial of the plea 

in bar, Bixby prevented any “final disposition” of the issues 

raised therein. As a result, the entirety of the time from the 

original filing of the plea in bar until our mandate was spread 

upon the district court record was excludable.

The State and Ramos agree that there is a second excludable time period surrounding the motion to change the venue 

of the trial. However, the parties disagree on the amount of 

time that should be excluded. The State asserts that the excludable time began on August 23, 2018, when, according to the 

State, Ramos made an oral motion to change venue during 

a telephonic hearing. To the contrary, Ramos asserts that the 

excludable time began on August 30, when the State filed its 

stipulation to change venue. The parties agree that the excludable period ended on September 5, when the court entered its 

order granting the change of venue.

[5] As we noted above, there is no verbatim transcription 

from the August 23, 2018, telephonic hearing which definitively informs us whether Ramos made an oral motion to 

change the venue. However, in the stipulation filed by the 

State on August 30, counsel for the State recited that Ramos, 

through counsel, had renewed the motion to change venue 

during the course of the August 23 conference call. Then, in 

the district court’s order overruling Ramos’ motion for absolute discharge, it explicitly states that Ramos “renewed his 

previous Motion for a Change of Venue on August 23, 2018.” 

The court goes on to find that Ramos’ request for a change in 

venue was followed by the State’s stipulation to the change in 

venue which was filed on August 30. The district court’s recitation that Ramos renewed his motion for a change in venue 

prior to the State’s filing of the stipulation would conform to 
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STATE V. RAMO

Cite as 31 Neb. App. 434

the procedure outlined in Neb. Rev. Stat. § 29-1301 (Supp. 

2021). That statute provides that a court can transfer a criminal 

proceeding to any other district or county in the state “upon 

motion of the defendant.” The language of § 29-1301 does not 

provide the State with the ability to request a change in venue. 

The right is granted solely to the defendant.

Given the district court’s explicit finding that Ramos renewed 

his previous motion to change venue during the telephonic 

hearing on August 23, 2018, and the language of § 29-1301, 

which provides that only a defendant can motion for a change 

in venue, we are compelled to conclude that Ramos did, in 

fact, make an oral motion for a change of venue on August 23. 

In so concluding, we note that after the State filed its stipulation to the change in venue, Ramos never contradicted the 

State’s claim that he had previously motioned for the change in 

venue. As such, the time from August 23, when Ramos made 

his motion for a change in venue, through September 5, when 

the district court granted the motion for a change in venue, is 

excluded from the speedy trial clock. Adding those 14 additional excludable days to July 13, 2021, the new speedy trial 

deadline was July 27.

Ramos filed his motion for absolute discharge on July 21, 

2021, prior to the time the speedy trial deadline had passed 

and, thus, prematurely. Because we find that Ramos’ motion 

for absolute discharge was prematurely filed based on the 

excludable periods resulting from Ramos’ plea in bar and his 

motion for change in venue, we need not address whether any 

other excludable periods are present.

[6] We affirm the judgment of the district court overruling Ramos’ motion for absolute discharge, albeit for different reasons. See State v. Huff, 279 Neb. 68, 776 N.W.2d 498 

(2009) (where record adequately demonstrates that decision of 

trial court is correct—although such correctness is based on 

ground or reason different from that assigned by trial court—

an appellate court will affirm). Ramos has now waived his 

statutory right to a speedy trial under § 29-1207 by filing an 
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unsuccessful motion to discharge that necessitated continuing 

the trial beyond the 6-month period. See State v. Mortensen, 

287 Neb. 158, 841 N.W.2d 393 (2014).

Constitutional Right to Speedy Trial.

[7] On appeal, Ramos also claims that the district court erred 

in denying his motion for speedy trial based upon constitutional 

grounds. Specifically, Ramos asserts that the delays in bringing 

him to trial violated his constitutional right to a speedy trial. 

The Supreme Court recently held in State v. Abernathy, 310 

Neb. 880, 891, 969 N.W.2d 871, 879 (2022), that “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)].” We therefore lack appellate jurisdiction 

to review Ramos’ claim that he was entitled to absolute discharge on constitutional speedy trial grounds, and we dismiss 

that part of the appeal.

Right to Due Process.

[8] In his brief on appeal, Ramos asserts that he was denied 

his constitutional right to due process as a result of the State’s 

delay in bringing him to trial. We note that Ramos’ ability 

to prove any due process violation is questionable given our 

finding that his statutory right to a speedy trial has not been 

violated. Ultimately, however, we need not further discuss 

Ramos’ due process claim, as he did not raise this issue in 

the district court. When an issue is raised for the first time 

in an appellate court, it will be disregarded inasmuch as a 

lower court cannot commit error in resolving an issue never 

presented and submitted to it for disposition. See, e.g., State v. 

Heng, 25 Neb. App. 317, 905 N.W.2d 279 (2017).

CONCLUSION

For the foregoing reasons, we affirm the order of the 

district court which overruled Ramos’ motion for absolute 
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Cite as 31 Neb. App. 434

discharge on statutory speedy trial grounds. Time remained 

on the speedy trial clock when Ramos filed his motion for 

discharge. We lack appellate jurisdiction to review Ramos’ 

claim that he was entitled to absolute discharge on constitutional speedy trial grounds, and we therefore dismiss that part 

of the appeal.

Affirmed in part, and in part dismissed.