                         IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                        (Memorandum Web Opinion)

                                        STATE V. PARTEE


  NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
 AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).


                                STATE OF NEBRASKA, APPELLEE,
                                                V.

                               TERRANCE L. PARTEE, APPELLANT.


                              Filed April 7, 2020.   No. A-19-523.


       Appeal from the District Court for Deuel County: DEREK C. WEIMER, Judge. Affirmed.
       Audrey M. Elliott, of A. Elliott Law, P.C., L.L.O., for appellant.
       Douglas J. Peterson, Attorney General, and Jordan Osborne for appellee.


       MOORE, Chief Judge, and RIEDMANN and WELCH, Judges.
       WELCH, Judge.
                                       INTRODUCTION
        Terrance L. Partee appeals the Deuel County District Court’s denial of his motion for
absolute discharge based upon an alleged violation of his right to a speedy trial. For the reasons
set forth herein, we affirm.
                                   STATEMENT OF FACTS
       On April 19, 2018, the State filed an eight-count information charging Partee with
possession of tetrahydrocannabinols (THC) with the intent to deliver, a Class IIA felony;
possession of tetrahydrocannabinols (THC), a Class IV felony; failure to affix a tax stamp, a
Class IV felony; tampering with physical evidence, a Class IV felony; obstructing a peace officer,
a Class I misdemeanor; false reporting, a Class I misdemeanor; resisting arrest, a Class I
misdemeanor; and possession of marijuana, more than one ounce and less than one pound, a




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Class III misdemeanor. The information was later amended to downgrade possession of THC from
a Class IV felony to an infraction, then amended to remove this charged offense altogether.
         On April 24, 2018, Partee filed a motion for discovery which was granted the same day.
         On May 3, 2018, Partee filed a motion to continue his arraignment scheduled for May 7
because he could not find transportation on that date. He requested the arraignment be rescheduled
to June 4 when he would have transportation. The court granted this motion the same day it was
filed. The arraignment took place as scheduled on June 4. During this arraignment, Partee’s
counsel requested, on the record, that pretrial in this matter be scheduled on the court’s September
motion day so that the case tracked with the co-defendant’s case. The court then scheduled the
pretrial on its September 10 motion day.
         On September 10, 2018, during the scheduled pretrial hearing, Partee requested a
continuance which was granted by the court. The pre-trial hearing was continued to October 1.
There is some confusion then as to when Partee filed his motion to suppress. In an affidavit filed
by Partee’s counsel, counsel averred that she learned that the motion to suppress she intended to
file was apparently not on file with the clerk’s office. Nevertheless, counsel stated that the motion
to suppress was discussed during the September 10 pretrial hearing which was continued to
October 1; that she had a last modified, hard copy of the motion to suppress in her own file dated
September 11, 2018; and that “the replacement motion should be filed as of September 11, 2018,
which will clarify the record should this case be appealed.” As evidence that Partee filed, or
attempted to file, the motion to suppress prior to the October 1 pretrial hearing, Partee’s counsel
attested in her affidavit that she represented to the court at the September 10 hearing that all
motions would be filed between September 10 and the October 1 pretrial date. Further, counsel
attested that, at the October 1 hearing, the parties appeared for the pretrial, but ended up discussing
setting the suppression hearing instead. Accordingly, the court, on October 1, continued the pretrial
hearing until October 5 to allow the court time to determine available dates to hold the suppression
hearing.
         A suppression hearing was subsequently held on October 22, 2018, during which the State
offered into evidence a body camera video recording. Partee objected on various grounds. The
court recessed the proceedings to consider Partee’s objections and, on October 26, entered an order
overruling those objections and instructed counsel “to contact the Court to schedule the further
hearing on the Motion to Suppress.” The second day of the suppression hearing was held on
January 18, 2019, and the court issued an order overruling Partee’s motion to suppress on February
1. Trial was then set for March 28 and 29. However, on March 12, the State moved to continue the
trial because one of the State’s witnesses was unavailable. The court granted the State’s motion to
continue and rescheduled the trial for April 17 and 18.
         On April 4, 2019, the court telephonically notified the parties about its concern that the
April 17 trial date would be past the statutory six month timeframe and advised the parties that,
unless it was informed that Partee waived his right to a speedy trial, it would set jury trial for April
10.
         On April 10, 2019, Partee filed a motion for absolute discharge based upon an alleged
violation of his statutory right to a speedy trial. On May 23, the court denied Partee’s motion for
an absolute discharge noting there was still time left on the speedy trial clock based on the
following calculations:


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               a. One day (April 24, 2018) due to the filing for and receipt of an order of discovery.
               b. Thirty-three days (May 3, 2018 to June 4, 2018) due to [Partee]’s Motion to
       Continue arraignment;
               c. Ninety-eight days (June 5, 2018 to September 10, 2018) due to [Partee]’s request
       to have this case track with the co-defendant’s case and to have the matter set for pre-trial
       conference in September. “a. This is the timeframe that gave the Court pause in its pre-trial
       calculation. Having reviewed the transcript of the hearing on June 4, 2018, it is clear in the
       record that the Court and counsel engaged in a discussion of settings for the matter.
       [Partee]’s attorney clearly requests in the hearing that the matter be scheduled on the
       September motion day to keep this case tracking with the co-defendant’s case. This is time
       that cannot run against the State for speedy trial purposes as it was set at the request or at
       least with the acquiescence of Partee. . . .”
               d. Twenty-eight days (September 11, 2018 to October 1, 2018) due to [Partee]’s
       Motion to Continue the pre-trial conference.
               e. One-hundred and twenty-three days (October 2, 2018 to February 1, 2019) due
       to [Partee]’s Motion to Suppress and resolution of the same.
               f. This totals two-hundred and eighty-three days to add from October 15, 2018.
               This means that [Partee] had to be brought to trial by July 25, 2019.

       Partee has timely appealed to this court.
                                   ASSIGNMENT OF ERROR
       Partee’s sole assignment of error is that the district court erred in denying his motion for
absolute discharge.
                                    STANDARD OF REVIEW
       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. Lovvorn, 303 Neb. 844, 932 N.W.2d 64 (2019).
                                            ANALYSIS
         Partee contends that he was entitled to an absolute discharge because the State violated his
statutory right to a speedy trial.
         The statutory right to a speedy trial is set forth in Neb. Rev. Stat. §§ 29-1207 and 29-1208
(Reissue 2016). See, State v. Lovvorn, supra; 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 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. Lovvorn, supra; State v. Vela-Montes, supra.
         “The primary burden of bringing an accused person to trial within the time provided by
law is upon the State.” State v. Beitel, 296 Neb. 781, 789, 895 N.W.2d 710, 718 (2017). “If the



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State does not bring a defendant to trial within the permitted time, as extended by any periods
excluded under § 29-1207(4), the defendant is entitled to absolute discharge from the offense
charged.” Id. at 789-90, 895 N.W.2d at 718. “The burden of proof is on the State to show, by a
preponderance of the evidence, that one or more of the excluded periods under § 29-1207(4) are
applicable.” Id.
         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. Lovvorn, supra; State v. Vela-Montes, supra. Because the
information was filed on April 19, 2018, in this case, the State had until October 19 to bring Partee
to trial if there were no excludable days. While the parties both acknowledge there are excludable
days in connection with the computation, they disagree as to which days are excludable and what
was the permitted time the State had to bring Partee to trial. Because we find that the deadline for
trial came after April 10, 2019 (the date Partee filed a motion for absolute discharge), applying
only excludable time attributable to Partee’s motion to continue the arraignment and time
attributable to Partee’s motion to suppress, we need not resolve other sources of dispute governing
excludable time argued by Partee.
         “[T]he calculation of excludable time for a continuance begins the day after the
continuance is granted and includes the day on which the continuance ends.” Lovvorn, 303 Neb.
at 850, 932 N.W.2d at 69. The calculation of excludable time for a motion to suppress begins from
the time of filing until the final disposition of the motion. § 29-1207(4)(a).
         The first excludable time period relates to Partee’s motion to continue the arraignment filed
on May 3, 2018, which hearing was held on June 4. Partee concedes this time is attributable to him
and should be excluded. Appellant’s brief at 16. Thus, 32 calendar days are excludable from the
speedy trial calculation.
         The second excludable time period relates to Partee’s September 10, 2018, requested
continuance of the pre-trial hearing, which was granted and rescheduled for October 1 and Partee’s
motion to suppress. The record indicates that the parties and court proceeded as if Partee’s motion
to suppress was filed on September 11, 2018. Although there was some discrepancy in the record
as to whether the motion itself was actually filed on September 11, Partee’s counsel attested, by
affidavit, that filing the motion on that date was her intention; that the motion was discussed at
both the September 10 and October 1 hearings; and that, for purposes of the record, the court
should consider the motion filed as of September 11, 2018. Based upon our review of this record
and Partee’s counsel’s affidavit, we find that Partee’s motion to suppress was initiated for speedy
trial purposes on September 11, 2018.
         The suppression hearing was then held over two days: October 22, 2018, and January 18,
2019. The court’s final disposition of Partee’s motion to suppress was filed on February 1, 2019.
Therefore, part of the excludable time from Partee’s September 10 continuance overlapped with
his motion to suppress. Partee concedes that the tolling period related to his motion to suppress is
attributable to him, but comes up with a different calculation than the district court.
         Our calculation of the excludable time period varies from Partee’s. The excludable time
for the September 10, 2018, continuance began on September 11, 2018, and ended October 1,
while the excludable time for the overlapping motion to suppress began on September 12, but
ended on February 1, 2019, when the court entered its order denying Partee’s motion to suppress.


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Accordingly, the excludable time for this period is 144 calendar days. Adding 144 days to the
previously calculated 32 days brings the total number of excludable days to 176 calendar days.
These excludable periods alone extended the trial date from October 19, 2018, to Saturday April
13, 2019, making Monday April 15, the last permissible day for trial under our calculations not
including other potential excludable time periods.
        Here, it is not necessary for us to determine precisely how many days remained on the
speedy trial clock when Partee filed his motion for discharge in order to decide this case, nor is it
necessary for us to make that determination so that the parties know how much time remains to try
Partee. In State v. Mortensen, 287 Neb. 158, 841 N.W.2d 393 (2014), the Nebraska Supreme Court
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 precise situation presented in this case. Partee’s motion for absolute discharge
resulted in the continuance of the trial previously scheduled for April 10, 2019. Partee’s motion
and subsequent appeal have moved any trial many months beyond the time that potentially
remained. Further, we conclude that Partee’s motion for discharge was properly denied.
Accordingly, Partee has waived his statutory right to a speedy trial and there is no need to calculate
the exact number of days remaining on the speedy trial clock. See State v. Vela-Montes, 287 Neb.
679, 844 N.W.2d 286 (2014).
        Because Partee’s trial was set for April 10, 2019, with some number of days remaining on
the speedy trial clock when Partee filed his motion to discharge, the court did not clearly err in
overruling his motion. See In re Interest of Jabreco G., 12 Neb. App. 667, 681, 683 N.W.2d 386,
398 (2004) (affirming both written and oral motions to suppress). Accordingly, this assigned error
fails.
                                          CONCLUSION
       For the reasons previously discussed, we affirm the district court’s denial of Partee’s
motion for absolute discharge.
                                                                                   AFFIRMED.




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