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STATE v. BRIDGEFORD

Cite as 298 Neb. 156

State of Nebraska, appellee, v.

Gerard Bridgeford, appella

State of Nebraska, appellee, v.

Judith Bridgeford, appella

___ N.W.2d ___

Filed November 3, 2017. Nos. S-16-1032, S-16-1035.

1. Statutes: Appeal and Error. Statutory interpretation presents a question 

of law, which an appellate court resolves independently of the conclusion reached by the trial court.

2. Speedy Trial: Waiver: Motions for Continuance. Although the amendments to Neb. Rev. Stat. § 29-1207(4)(b) (Reissue 2016) were designed 

to prevent abuse, it does not follow that the waiver set forth therein 

applies only if the defendant’s continuance was in bad faith.

3. Speedy Trial: Waiver: Motions for Continuance: Time. To determine 

if a defendant has permanently waived his or her statutory right to a 

speedy trial, the inquiry is simply whether the defendant’s motion to 

continue resulted in a trial date that exceeded the 6-month period, as 

calculated with the excludable periods up to the date of the motion; the 

reason for and nature of the motion to continue are of no consequence.

4. Speedy Trial: Time: Indictments and Informations. To calculate the 

6-month clock, a court must exclude the day the information 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).

5. Speedy Trial: Time: Pleadings. Excludable periods attributable to pretrial motions such as motions to suppress, motions to quash, demurrers, 

pleas in abatement, and motions for change of venue begin on the date 

of filing and end on the date of final disposition of the motions.

6. Speedy Trial: Time: Pretrial Procedure: Motions for Continuance. 

Continuances of pretrial conferences are excludable from the speedy 

trial clock from the original date of the pretrial conference to the newly 

scheduled pretrial conference date.

Nebraska Supreme Court Online Library

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

11/09/2017 09:12 AM CST
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7. Trial: Motions for Continuance: Time. An indefinite continuance of 

trial runs from the day of the motion until either the defendant’s notice 

of a request for trial or the date set for trial by the court’s own motion.

8. Motions for Continuance: Time. Any motion to continue that fails to 

set forth at the outset a definite length of time is indefinite.

9. 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 

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

for disposition.

Appeals from the District Court for Saunders County: Mar

C. Gilbride, Judge. Affirmed.

Jennifer D. Joakim for appellant Gerard Bridgeford.

Mark A. Steele, of Steele Law Office, for appellant Judith 

Bridgeford.

Douglas J. Peterson, Attorney General, and Siobhan E. 

Duffy for appellee.

Heavican, C.J., Wright, Miller-Lerman, Cassel

Kelch, and Funke,

Wright, J

NATURE OF CASE

The defendants in these consolidated appeals assert that the 

district court erred in denying their motions for absolute discharge. The district court determined that under the plain language of Neb. Rev. Stat. § 29-1207(4)(b) (Reissue 2016), the 

defendants had permanently waived their statutory speedy trial 

right by requesting continuances that resulted in moving their 

trial dates from a date within the statutory 6-month period to 

a date outside the statutory 6-month period. The defendants 

dispute the court’s reading of § 29-1207(4)(b) and argue that 

the permanent waiver set forth therein does not apply because 

they requested continuances for a definite rather than an indefinite period of time. They also argue that they should not be 
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Cite as 298 Neb. 156

deemed to have permanently waived their statutory right to a 

speedy trial when the requested continuances were reasonable 

and not motivated by gamesmanship.

BACKGROUND

Gerard Bridgeford and Judith Bridgeford were charged on 

June 3, 2014, with several crimes. Gerard was charged with 

10 counts of possessing marijuana with intent to deliver and 

5 counts of possession of marijuana with intent to deliver to 

minors. Judith was charged with 10 counts of aiding and abetting possession of marijuana with intent to deliver and 5 counts 

of aiding and abetting possession of marijuana with intent to 

deliver to minors.

Their trials were set for September 24, 2014. On August 

14, Gerard filed a motion to continue his scheduled trial. On 

August 15, the court granted Gerard’s motion to continue. The 

court set a new date of September 22 for Gerard’s status hearing and set the jury trial for October 15.

Judith similarly moved for a continuance on August 18, 

2014, which the court granted that same date. The court set 

the new date for Judith’s status hearing for September 29. The 

court did not set a new trial date at that time.

On September 17, 2014, Gerard moved to continue his status 

hearing from September 22 to September 29. The court granted 

the motion.

At Judith’s status hearing on September 29, 2014, the court 

granted Judith’s motion to remove her case from the trial 

docket. She explained that she intended to file a motion to suppress. Gerard’s status hearing is not in the record.

On October 6, 2014, both Gerard and Judith filed motions 

to suppress. On January 5, 2015, the court denied the motions 

and set status hearings for January 26.

On January 13, 2015, Gerard and Judith both filed motions 

to continue their January 26 status hearings. On January 16, 

the court granted the motions. The court rescheduled the status 

hearings to February 9.
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At their status hearings on February 9, 2015, Gerard and 

Judith moved to continue trial in order to complete depositions. 

The court set June 25 as their new trial date.

On May 11, 2015, Gerard and Judith again moved to continue their trials. The court granted the motions and set a new 

trial date for August 26.

The State filed a motion for joinder on May 18, 2015. At a 

hearing on June 23 to consider the State’s motion, Gerard and 

Judith both moved to further continue their trials. The court 

granted the motions, setting status hearings for September 14, 

with the trial dates to be determined at that time. The court did 

not consider the motion for joinder.

At the September 14, 2015, status hearing, the court granted 

Gerard’s and Judith’s motions for continuances on the ground 

that depositions were still being conducted. The court set status 

hearings for October 26.

On October 26, 2015, Gerard and Judith moved to continue the date of their status hearings. The court rescheduled 

the hearings to December 21, with the trial dates to be set at 

that time.

On December 17, 2015, Gerard and Judith moved to continue the December 21 status hearings. The court rescheduled 

the hearings for February 8, 2016.

On February 5, 2016, Gerard and Judith moved to continue the February 8 status hearings. On February 8, the 

court granted the motions and rescheduled the hearings for 

April 25.

The status hearings finally took place as scheduled on April 

25, 2016. And Gerard and Judith stated at the hearing that they 

were ready to proceed to trial. The court set their trials for 

December 12.

On June 3, 2016, the hearing was held on the State’s 

motion for joinder. However, no ruling on the motion is in 

the record.

On September 9, 2016, Judith filed a motion for absolute 

discharge, alleging that both her statutory and constitutional 
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Cite as 298 Neb. 156

speedy trial rights had been violated. On October 3, Gerard 

filed a motion for absolute discharge alleging the same.

After a hearing, the court overruled the motions. The court 

reasoned that under § 29-1207(4)(b), both Gerard and Judith 

permanently waived their statutory right to a speedy trial when 

they requested a continuance that resulted in a trial date within 

the statutory 6-month period’s being moved to a date outside 

of the statutory 6-month period. The court did not expressly 

address Gerard’s and Judith’s constitutional right to a speedy 

trial. Gerard and Judith each appealed.

ASSIGNMENTS OF ERROR

Gerard and Judith both assign that the district court erred 

in failing to grant their motions for absolute discharge on the 

ground that their statutory and constitutional speedy trial rights 

were violated.

Gerard asserts that his motion for absolute discharge should 

have been granted for the additional reason that he was denied 

due process.

STANDARD OF REVIEW

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

we resolve independently of the conclusion reached by the 

trial court.1

ANALYSIS

Statutory Ri

Gerard and Judith argue that they did not permanently 

waive their statutory right to a speedy trial, as determined 

by the district court. Section 29-1207(4)(b) states in relevant 

part that “[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 

1 See, e.g., Pettit v. Nebraska Dept. of Corr. Servs., 291 Neb. 513, 867 

N.W.2d 553 (2015).
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or her counsel extends the trial date beyond the statutory 

six-month period.” Gerard and Judith do not deny that their 

requests for continuances extended the trial date beyond the 

6-month period. Rather, they assert that the waiver language 

of § 29-1207(4)(b) does not apply because they requested 

continuances for a definite period of time and for good reason. 

These are not relevant factors in the waiver inquiry.

In State v. Gill,

2

 we recently reiterated that the waiver language contained in § 29-1207(4)(b) was added in response to 

the concurring opinion in State v. Williams.

3 The concurring 

opinion criticized the fact that the statutory scheme at that 

time allowed the speedy trial clock to follow the State during potentially years of aggregate individual continuances by 

the defendant. During such extended period, the defendant 

could wait and hope that the State would make a mistake in 

calculating excludable periods, and thereby obtain absolute 

discharge of the charges without any showing of prejudice. 

The concurrence in Williams suggested that the Legislature 

should consider providing for permanent waiver of the statutory right to a speedy trial once a defendant extends the 

trial date beyond the statutory 6-month period. That is precisely what the Legislature did with the waiver language of 

§ 29-1207(4)(b).

We held in Gill that § 29-1207(4)(b) “provides for a ‘permanent waiver’” regardless of whether the continuance was 

for a definite or indefinite period of time.4 We explained that 

there is no language in the statute suggesting that only if the 

continuance was indefinite does a defendant waive his or her 

statutory right to a speedy trial.

2 State v. Gill, 297 Neb. 852, ___ N.W.2d ___ (2017). See, also, State v. 

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

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

3 State v. Williams, 277 Neb. 133, 761 N.W.2d 514 (2009) (Wright, J., 

concurring; Heavican, C.J., and Connolly, J., join).

4 State v. Gill, supra note 2, 297 Neb. at 862, ___ N.W.2d at ___.
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We also repeated in Gill what we had explained in State v. 

Mortensen5 and State v. Vela-Montes.

6

 The waiver language of 

§ 29-1207(4)(b) is broad. It provides for a permanent waiver 

regardless of the reasons for which a continuance was granted.

[2] As indicated in Gill, Mortensen, and Vela-Montes,

we will not read into the broad waiver provision of 

§ 29-1207(4)(b) a meaning that is not there. Although the 

amendments to § 29-1207(4)(b) were designed to prevent 

abuse, it does not follow that the waiver set forth therein 

applies only if the defendant’s continuance was in bad faith. 

Such a case-by-case evaluation of subjective intent would be 

untenable, and the statute does not provide for it.

[3] To determine if a defendant has permanently waived 

his or her statutory right to a speedy trial, the inquiry is simply whether the defendant’s motion to continue resulted in 

a trial date that exceeded the 6-month period, as calculated 

with the excludable periods up to the date of the motion.7

The reason for and nature of the motion to continue are of 

no consequence.

[4-8] The facts presented here show that Gerard and Judith 

sought continuances that resulted in trial dates outside the 

6-month statutory period. To calculate the 6-month clock, a 

court must exclude the day the information was filed, count 

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

excluded under § 29-1207(4).8 Excludable periods attributable 

to pretrial motions such as motions to suppress, motions to 

quash, demurrers, pleas in abatement, and motions for change 

of venue begin on the date of filing and end on the date of 

final disposition of the motions.9 Continuances of pretrial 

5 State v. Mortensen, supra note 2.

6 State v. Vela-Montes, supra note 2.

7 See State v. Gill, supra note 2.

8 See State v. Williams, supra note 3.

9 See § 29-1207(4).
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conferences are excludable from the original date of the pretrial conference to the newly scheduled pretrial conference 

date.10 An indefinite continuance of trial runs from the day of 

the motion until either the defendant’s notice of a request for 

trial or the date set for trial by the court’s own motion.11 Any 

motion to continue that fails to set forth at the outset a definite 

length of time is indefinite.12

Absent any excludable periods, the 6-month clock would 

have run for Gerard and Judith on December 3, 2014. That 

trial date was first extended for Gerard for 62 days between 

the August 14 motion to continue and the new trial date of 

October 15. At that point, the 6-month clock would have run 

for Gerard on February 3, 2015. On October 6, 2014, Gerard 

filed a motion to suppress, which was not decided until January 

5, 2015. Discounting overlapping days between October 6 and 

October 15, 2014, this resulted in 82 more excludable days and 

a new 6-month clock date of April 26, 2015.

On January 13, 2015, Gerard moved to continue his January 

26 status hearing, which was rescheduled to February 9. This 

was another 14 excludable days, resulting in a new speedy 

trial date of May 10. At the February 9 hearing, Gerard asked 

for a continuance resulting in a new trial date of June 25, well 

beyond the May 10 speedy trial date considering excludable 

periods up to that point. Because Gerard’s February 9 motion 

to continue resulted in a trial date that exceeded the 6-month 

period, as calculated with the excludable periods up to the 

10 See, State v. Wells, 277 Neb. 476, 763 N.W.2d 380 (2009); State v. Craven,

17 Neb. App. 127, 757 N.W.2d 132 (2008); State v. Dailey, 10 Neb. App. 

793, 639 N.W.2d 141 (2002).

11 See, § 29-1207(4)(b); State v. Wells, supra note 10; State v. Williams,

supra note 3; State v. Schmader, 13 Neb. App. 321, 691 N.W.2d 559 

(2005).

12 See, State v. Schmader, supra note 11; State v. Dailey, supra note 10. See, 

also, State v. Powell, 755 N.E.2d 222 (Ind. App. 2001).
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date of the motion, he permanently waived his statutory right 

to a speedy trial.

Judith first extended her December 3, 2014, speedy trial 

date when, on August 18, she filed a motion for an indefinite 

continuance of her trial. The excludable period of Judith’s 

motion did not end until the new trial date of June 25, 2015, 

since, despite intervening motions, that was the first trial date 

set after the August 18, 2014, motion. The January 13, 2015, 

motion resulted in 311 excludable days and a new speedy trial 

date of October 10.

On May 11, 2015, Judith asked for a continuance that 

resulted in the court’s setting a new trial date for August 26. 

This created 107 excludable days and a new speedy trial date 

of January 25, 2016. And on June 23, 2015, Judith moved for 

an indefinite continuance. At no point before January 25, 2016, 

did Judith take any affirmative action to end the continuance, 

nor did the court reschedule the trial date. Thus, as of January 

26, Judith’s indefinite continuance resulted in a trial date that 

exceeded the 6-month period as calculated with the excludable periods up to the date of the motion. Judith permanently 

waived her statutory speedy trial right by virtue of the June 23, 

2015, motion to continue.

Gerard and Judith both permanently waived their statutory 

right to a speedy trial. We find no merit to their contention 

that the district court erred in failing to grant their motions for 

absolute discharge on the ground that their statutory right to a 

speedy trial was violated.

Constitutional Speedy T

and Due Process 

Likewise, we find no merit to Gerard’s and Judith’s assertion that the district court erred in failing to grant their motions 

for absolute discharge on the ground that their constitutional 

right to a speedy trial was violated. They focus on the 231-day 

delay between the time they finally stated on April 25, 2016, 

that they were ready to proceed to trial and the scheduled 
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Cite as 298 Neb. 156

trial date. They acknowledge that the delay up until the April 

25 hearing was attributable to their own motions, and neither 

makes any assertion that their ability to present a defense was 

prejudiced by the delay after that time.13

[9] As for Gerard’s due process claim of oppressive delay, 

assuming without deciding that such a claim could be part of 

the final, appealable order presented by a ruling on a motion 

for absolute discharge, that claim was not presented to the 

district court in Gerard’s motion for discharge. We will not 

address it for the first time in this appeal. 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.14

CONCLUSION

For the foregoing reasons, we affirm the orders of the district court.

Affirmed

13 See Reed v. Farley, 512 U.S. 339, 114 S. Ct. 2291, 129 L. Ed. 2d 277 

(1994).

14 State v. Nadeem, 284 Neb. 513, 822 N.W.2d 372 (2012).