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Nebraska Supreme Court Advance Sheets

303 Nebraska Reports

STATE v. LOVVORN

Cite as 303 Neb. 844

State of Nebraska, appellee, v. 

Daniel J. Lovvorn, appellant.

___ N.W.2d ___

Filed August 2, 2019. No. S-18-1104.

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. Statutes: Appeal and Error. Statutory interpretation presents a question of law, which an appellate court reviews independently of the lower 

court’s determination.

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. ____. If a defendant is not brought to trial before the running of the time 

for trial as provided for in Neb. Rev. Stat. § 29-1207 (Reissue 2016), as 

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

absolute discharge from the offense charged and for any other offense 

required by law to be joined with that offense.

5. ____. To calculate the deadline for trial under the speedy trial statutes, a 

court must exclude the day the State filed the information, count forward 

6 months, back up 1 day, and then add any time excluded under Neb. 

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

6. ____. For speedy trial purposes, the calculation of excludable time for a 

continuance begins the day after the continuance is granted and includes 

the day on which the continuance ends.

7. Speedy Trial: Waiver: Appeal and Error. A defendant’s motion to 

discharge based on statutory speedy trial grounds will be deemed to be 

a waiver of that right under Neb. Rev. Stat. § 29-1207(4)(b) (Reissue 

2016) 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.

Nebraska Supreme Court Online Library

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

09/20/2019 01:05 AM CDT
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Nebraska Supreme Court Advance Sheets

303 Nebraska Reports

STATE v. LOVVORN

Cite as 303 Neb. 844

8. 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.

Appeal from the District Court for Sarpy County: Nathan B. 

Cox, Judge. Affirmed.

Carolyn Wilson, Assistant Sarpy County Public Defender, 

and Mitchell Sells, Senior Certified Law Student, 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.

Papik, J.

Daniel J. Lovvorn filed a motion for discharge on statutory 

and constitutional speedy trial grounds. The district court overruled the motion, and Lovvorn appeals that ruling. For reasons 

we will explain, we affirm.

BACKGROUND

On January 19, 2018, the State filed an information against 

Lovvorn in the district court for Sarpy County. The State 

charged Lovvorn with theft by receiving stolen property, $5,000 

or more; possession of a deadly weapon by a prohibited person; 

possession of a firearm by a prohibited person; driving under 

revocation/court order; carrying a concealed weapon; reckless 

driving; obstructing a peace officer; possession of marijuana, 

1 ounce or less, or synthetically produced cannabinoids; and 

possession of drug paraphernalia. On January 30, the district 

court set a pretrial hearing for April 9 and scheduled trial to 

begin on June 14.

On April 9, 2018, the day initially scheduled for the pretrial conference, Lovvorn requested a continuance. The court 

granted the continuance and set the pretrial hearing for June 11. 

The scheduled trial date was left unchanged.
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Nebraska Supreme Court Advance Sheets

303 Nebraska Reports

STATE v. LOVVORN

Cite as 303 Neb. 844

On June 4, 2018, the State filed a motion to continue the 

trial. In its motion, the State asserted that it was seeking a 

continuance because one of its witnesses would be unable to 

attend the trial scheduled for June 14. Attached to the State’s 

motion was an affidavit of a witness, a deputy sheriff, stating 

that he would be out of the state for a planned vacation at that 

time. At the hearing on this motion, Lovvorn’s counsel indicated that she objected to the continuance “[f]or the record,” 

without providing further reasons for the objection. The district 

court granted the motion to continue in a June 12 journal entry 

and order which provided that the trial would commence on 

July 17.

On July 5, 2018, the State filed another motion to continue 

the trial date. The State asserted that another of its witnesses 

would be unavailable to testify for a trial beginning July 17. 

Attached to the State’s motion was an affidavit from the prosecutor stating that “a material and necessary witness for the 

State’s case” would be unavailable to testify July 17 as a result 

of previously scheduled work-related travel. At a July 9 hearing, Lovvorn again objected “for the record” without providing 

reasons for the objection. In a journal entry and order entered 

later that day, the district court granted the motion. In the same 

order, the district court transferred the case to a different judge 

and ordered that the new trial date would be set by the judge 

to whom the case was transferred. The order indicated that the 

case was transferred because the judge to whom the case was 

transferred “has the lowest open docket.”

On July 19, 2018, the judge to whom the case was transferred entered a journal entry and order scheduling a status 

hearing for July 30. On July 30, the judge entered a journal 

entry and order scheduling a pretrial hearing for August 20. On 

August 6, the judge entered an order setting the matter for trial 

on September 11.

On September 6, 2018, Lovvorn filed a motion for discharge 

on statutory and constitutional speedy trial grounds. Following 

a hearing, the district court overruled the motion in a written 
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Nebraska Supreme Court Advance Sheets

303 Nebraska Reports

STATE v. LOVVORN

Cite as 303 Neb. 844

order. The district court concluded that all of the time between 

the first continuance requested by the State through its second 

continuance and Lovvorn’s motion for discharge was excludable under Neb. Rev. Stat. § 29-1207(4)(c) (Reissue 2016) 

and that therefore, the time to bring Lovvorn to trial under 

Nebraska’s speedy trial statutes had not expired. The district 

court also found that Lovvorn’s constitutional right to a speedy 

trial had not been violated after applying the four-factor test of 

Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 

101 (1972).

Lovvorn appeals.

ASSIGNMENTS OF ERROR

Lovvorn asserts that the district court erred in finding he 

was not entitled to discharge (1) on statutory speedy trial 

grounds or (2) on constitutional speedy trial grounds.

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. Gill, 297 Neb. 852, 901 N.W.2d 

679 (2017).

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

an appellate court reviews independently of the lower court’s 

determination. Id.

ANALYSIS

Statutory Right to Speedy Trial.

[3,4] Lovvorn 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 Neb. Rev. Stat. § 29-1208 (Reissue 2016). State 

v. Vela-Montes, 287 Neb. 679, 844 N.W.2d 286 (2014). Section 

29-1207(1) provides in part that “[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 
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STATE v. LOVVORN

Cite as 303 Neb. 844

this section.” If a defendant is not brought to trial before the 

running of the time for trial as provided for in § 29-1207, as 

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

or her absolute discharge from the offense charged and for any 

other offense required by law to be joined with that offense. 

State v. Vela-Montes, supra.

[5] To calculate the deadline for trial under the speedy trial 

statutes, a court must exclude the day the State filed the information, count forward 6 months, back up 1 day, and then add 

any time excluded under § 29-1207(4). State v. Vela-Montes, 

supra. Because the information was filed on January 19, 2018, 

in this case, the State had until July 19 to bring Lovvorn to 

trial if there were no excludable days.

[6] The parties agree, however, that there were at least some 

excludable days. Lovvorn conceded at oral argument that the 

period of delay resulting from the State’s first motion for a 

continuance fell within § 29-1207(4)(c)(i). The calculation of 

excludable time for a continuance begins the day after the continuance is granted and includes the day on which the continuance ends. State v. Williams, 277 Neb. 133, 761 N.W.2d 514 

(2009). The district court granted the State’s first motion for 

a continuance on June 12, 2018, and continued the trial until 

July 17. There is thus no dispute that 35 calendar days were 

properly excluded as a result of the first continuance obtained 

by the State.

The State contends that two other periods of time were also 

excludable. The State argues that a period of time is excludable under § 29-1207(4)(b) as a result of Lovvorn’s successful 

request for a continuance of the pretrial hearing. The State also 

argues that the period of delay resulting from its second request 

for a continuance is excludable under § 29-1207(4)(c). Lovvorn 

disputes that any excludable time arose out of either his motion 

to continue or the State’s second motion to continue.

With respect to his motion to continue the pretrial hearing, 

Lovvorn does not dispute that he requested a continuance of 

the pretrial hearing; that the district court granted his request; 
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STATE v. LOVVORN

Cite as 303 Neb. 844

and that as a result of his request, the pretrial hearing originally scheduled for April 9, 2018, was rescheduled for June 11. 

He also acknowledges prior cases in which this court and the 

Nebraska Court of Appeals have recognized that the continuance of a pretrial hearing or conference can result in excludable 

time. See, e.g., State v. Bridgeford, 298 Neb. 156, 903 N.W.2d 

22 (2017); State v. Williams, supra; State v. Dailey, 10 Neb. 

App. 793, 639 N.W.2d 141 (2002). Lovvorn argues, however, 

that the continuance he obtained did not result in excludable 

time under § 29-1207(4)(b).

Section 29-1207 provides in relevant part: “(4) The following periods shall be excluded in computing the time for 

trial: . . . (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.”

Lovvorn points to the appearance of the word “trial” in the 

introductory language of § 29-1207(4) and the appearance of 

the phrase the “period of delay” in subsection (b) and argues 

that it is only when a continuance results in the postponement of trial, that time is excluded for speedy trial purposes. 

He argues that the continuance he requested did not result in 

a delay of the trial, because when the district court continued 

the pretrial hearing from April 9 to June 11, 2018, it did not 

reschedule the trial itself, which had been previously set for 

June 14.

Lovvorn’s argument requires us to interpret § 29-1207(4)(b). 

Our basic principles of statutory interpretation require us to 

give statutory language its plain and ordinary meaning. See 

State ex rel. Peterson v. Creative Comm. Promotions, 302 

Neb. 606, 924 N.W.2d 664 (2019). Those same principles 

prohibit us from reading a meaning into a statute that is not 

there or reading anything direct and plain out of a statute. See 

Stewart v. Nebraska Dept. of Rev., 294 Neb. 1010, 885 N.W.2d 

723 (2016).

We are unpersuaded by Lovvorn’s statutory interpretation 

argument. The introductory phrase of § 29-1207(4) does use 
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STATE v. LOVVORN

Cite as 303 Neb. 844

the word “trial,” but that is unsurprising, because the statute provides the time by which a defendant must be brought 

to trial. Neither do we find that the presence of the phrase 

“period of delay” in § 29-1207(4)(b) supports Lovvorn’s argument. While Lovvorn contends that there was no period of 

delay as a result of his continuance, he is incorrect. The pretrial hearing would have occurred April 9, 2018, but due to 

his request for a continuance, it did not. And, in any event, 

we have held that in the context of § 29-1207(4), there is no 

meaningful distinction between the phrase “‘period of delay’” 

and “‘period of time.’” State v. Feldhacker, 267 Neb. 145, 

154-55, 672 N.W.2d 627, 634 (2004).

Lovvorn is essentially asking us to interpret § 29-1207(4)(b) 

to say that only when a continuance requested by the defendant results in the postponement of a scheduled trial date does 

excludable time arise. This would run contrary to our practice 

to not read meaning into a statute that is not reflected in its 

text. See Stewart v. Nebraska Dept. of Rev., supra. The statutory language provides for excludable time whenever there is 

a “period of delay resulting from a continuance granted at 

the request or with the consent of the defendant or his or her 

counsel.” § 29-1207(4)(b). The delay caused by Lovvorn’s 

request for a continuance of the pretrial hearing meets this 

definition regardless of whether the trial date was postponed or 

remained unchanged.

Having determined that Lovvorn’s request for a continuance 

of the pretrial hearing resulted in excludable days, this leaves 

only a determination of how many days were excluded. We 

recognize that State v. Bridgeford, 298 Neb. 156, 903 N.W.2d 

22 (2017), indicates that excludable time arising as a result of 

the continuance of a pretrial conference begins at the original 

date of the pretrial conference. That language, however, is 

inconsistent with our precedent, noted above, which holds that 

the calculation of excludable time for a continuance begins 

the day after the continuance is granted and includes the day 

on which the continuance ends, and we thus disapprove of 
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STATE v. LOVVORN

Cite as 303 Neb. 844

the contrary language in Bridgeford. The day after Lovvorn 

requested the pretrial conference was April 10, 2018. The 

continuance ended on June 11, the date of the next scheduled 

pretrial hearing. There were thus 63 excludable days as a result 

of Lovvorn’s requested continuance.

To this point, we have determined that there were 98 excludable days. While the State argues that there were additional 

excludable days, there is no need for us to determine whether 

that is the case. Recalling that the State had until July 19, 2018, 

to try Lovvorn if there were no excludable days, the presence 

of 98 excludable days means that the State could timely bring 

Lovvorn to trial by October 25. See State v. Vela-Montes, 287 

Neb. 679, 844 N.W.2d 286 (2014). Lovvorn filed his motion 

for discharge September 6.

[7] Not only is it not necessary for us to determine precisely how many days remained on the speedy trial clock when 

Lovvorn filed his motion for discharge in order to decide this 

case, but neither is it necessary for us to make that determination so that the parties know how much time remains to try 

Lovvorn. In State v. Mortensen, 287 Neb. 158, 841 N.W.2d 

393 (2014), we held that 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.

That is the case here. Lovvorn’s motion for discharge 

resulted in the continuance of the trial previously scheduled for 

September 11, 2018. While the parties disagree about exactly 

how much time remained on the speedy trial clock on that date, 

Lovvorn’s motion and subsequent appeal have moved any trial 

many months beyond the time that potentially remained. And 

we conclude that Lovvorn’s motion for discharge was properly 

denied. Accordingly, Lovvorn has waived his statutory right 

to a speedy trial and there is no need to calculate the exact 
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STATE v. LOVVORN

Cite as 303 Neb. 844

number of days remaining on the speedy trial clock. See State 

v. Vela-Montes, supra.

Constitutional Right to Speedy Trial.

[8] We next consider whether the district court erred by 

finding that Lovvorn’s constitutional right to a speedy trial 

was not violated. The constitutional right to a speedy trial is 

guaranteed by U.S. Const. amend. VI and Neb. Const. art. I, 

§ 11. Determining whether a defendant’s constitutional right 

to a speedy trial has been violated requires application of a 

balancing test first articulated by the U.S. Supreme Court in 

Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 

101 (1972). That test involves consideration of four factors: 

(1) length of delay, (2) the reason for the delay, (3) the defendant’s assertion of the right, and (4) prejudice to the defendant. See, id.; State v. Betancourt-Garcia, 295 Neb. 170, 887 

N.W.2d 296 (2016).

We have observed that 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, 288 Neb. 

288, 301, 848 N.W.2d 582, 594 (2014). Applying the constitutional balancing test, we find this is not such a case.

First, the length of delay does not favor Lovvorn. While the 

constitutional right to a speedy trial and the statutory implementation of that right exist independently of each other, we 

have recognized that § 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. Here, as we have explained, Lovvorn filed his motion 

for discharge when time remained on the statutory speedy 

trial clock.

We find that the reason for the delay also does not favor 

Lovvorn. Barker itself distinguished between a “deliberate 

attempt to delay the trial in order to hamper the defense” which 

“should be weighted heavily against the government” and “a 

valid reason, such as a missing witness,” for which some delay 
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STATE v. LOVVORN

Cite as 303 Neb. 844

is justified. Barker v. Wingo, 407 U.S. at 531. There is no indication of a deliberate attempt on the part of the State to delay 

the trial to hinder Lovvorn’s defense, and Lovvorn concedes 

that at least part of the delay in this case arose because of witness unavailability. And while Lovvorn argues that the case 

was delayed due to the transfer of the case from one judge to 

another following the State’s second request for a continuance, 

there is no indication in the record that the transfer resulted in 

delay. After the State’s request for a continuance was granted, 

a new trial date was necessary. Our record provides no indication that the trial would have been scheduled for an earlier 

date if not for the transfer to a different judge.

Lovvorn fares no better with the third Barker factor, defendant’s assertion of the right. Barker noted that factor requires 

consideration of the “frequency and force” of the defendant’s 

objection to delay, rather than “attaching significant weight 

to a purely pro forma objection.” 407 U.S. at 529. Lovvorn 

objected to both of the State’s requests for a continuance, but 

speedy trial concerns were not mentioned; his counsel said 

the objection was “for the record.” These objections are, at 

most, the type of pro forma objections that are entitled to little 

weight in the Barker balancing test.

As for the final Barker factor, prejudice to the defendant, 

Lovvorn argues that he was not responsible for the continuances requested by the State and was therefore prejudiced. In 

Barker, however, the Court explained that the prejudice factor 

is to be assessed “in the light of the interests of defendants 

which the speedy trial right was designed to protect.” 407 U.S. 

at 532. The Barker Court identified three such interests: “(i) 

to prevent oppressive pretrial incarceration; (ii) to minimize 

anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired.” Id. Lovvorn makes 

no argument as to how any delay of trial in this case affected 

these interests.

After weighing the four Barker factors, we conclude that 

this is not an unusual case in which there was no statutory 
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STATE v. LOVVORN

Cite as 303 Neb. 844

speedy trial violation but there was a constitutional speedy 

trial violation.

CONCLUSION

Neither Lovvorn’s statutory nor constitutional right to a 

speedy trial was violated. We therefore affirm the district 

court’s order denying Lovvorn’s motion for discharge.

Affirmed.