State v. Sailors

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Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
STATE v. SAILORS
Cite as 29 Neb. App. 881
State of Nebraska, appellant, v.
Thomas N. Sailors, Sr., appellee.
___ N.W.2d ___
Filed May 25, 2021. 	No. A-20-050.
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. Speedy Trial. To calculate the time for speedy trial purposes, a court
must exclude the day the complaint 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) to determine the last day the defendant can
be tried.
3. Speedy Trial: Proof. The burden of proof is upon the State to show
that one or more of the excluded time periods under Neb. Rev. Stat.
§ 29-1207(4) (Reissue 2016) are applicable when the defendant is not
tried within 6 months.
4. ____: ____. To overcome a defendant’s motion for discharge on speedy
trial grounds, the State must prove the existence of excluded time by a
preponderance of the evidence.
5. Speedy Trial. Under Neb. Rev. Stat. § 29-1208 (Reissue 2016), 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 any excluded periods, expires, he or she is entitled to absolute dis-
charge from the offense charged and for any other offense required by
law to be joined with that offense.
6. Speedy Trial: Indictments and Informations. When an information
is dismissed and later refiled, the doctrine of tacking allows joining or
combining periods which have a nexus for continuity of time involved
in separated events or actions.
7. Speedy 	Trial: 	Indictments 	and 	Informations: 	Lesser-Included
Offenses. Under the tacking-and-tolling approach, the time between
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STATE v. SAILORS
Cite as 29 Neb. App. 881
dismissal of an information and refiling is not includable, or is tolled,
for purposes of the statutory 6-month period. However, any nonexclud-
able time that passed under the original information is tacked onto any
nonexcludable time under the refiled information, if the refiled informa-
tion alleges (1) the same offense charged in the previously dismissed
information, (2) an offense committed simultaneously with a lesser-
included offense charged in the information previously dismissed by the
State, or (3) commission of a crime that is a lesser-included offense of
the crime charged in the previously dismissed information.
8. Lesser-Included Offenses. To determine whether one statutory offense
is a lesser-included offense of the greater, Nebraska courts look to the
elements of the crime and not to the facts of the case.
9. ____. The test for determining whether a crime is a lesser-included
offense is whether the offense in question cannot be committed without
committing the lesser offense.
10. Speedy Trial. Addressing a claimed denial of statutory speedy trial
rights in a motion for discharge involves a relatively simple mathemati-
cal computation of whether the 6-month speedy trial clock, as extended
by statutorily excludable periods, has expired prior to the commence-
ment of trial.
11. ____. When ruling on a motion for absolute discharge pursuant to
Neb. Rev. Stat. § 29-1208 (Reissue 2016), the trial court shall make
specific findings of each period of delay excludable under Neb. Rev.
Stat. § 29-1207(4)(a) to (e) (Reissue 2016), in addition to the find-
ings under § 29-1207(4)(f). Such findings shall include the date and
nature of the proceedings, circumstances, or rulings which initiated
and concluded each excludable period; the number of days composing
each excludable period; and the number of days remaining in which
the defendant may be brought to trial after taking into consideration all
excludable periods.
Appeal from the District Court for Gage County: Ricky A.
Schreiner, Judge. Affirmed in part, and in part reversed and
remanded with directions.
Roger Harris, Gage County Attorney, and Amanda Spracklen-
Hogan for appellant.
Robert Wm. Chapin, Jr., for appellee.
Bishop, Arterburn, and Welch, Judges.

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Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
STATE v. SAILORS
Cite as 29 Neb. App. 881
Welch, Judge.
INTRODUCTION
The State of Nebraska appeals the order of the Gage County
District Court granting the motion for absolute discharge of
Thomas N. Sailors, Sr., which motion was based upon the vio-
lation of his right to a speedy trial. The State contends that the
district court erred in finding that the charged offense of distri-
bution of methamphetamine within 1,000 feet of a school was
not separate and distinct from a previously filed and dismissed
charge of distribution of methamphetamine and that the court
erred in granting the motion for absolute discharge. For the
reasons set forth herein, we affirm in part, and in part reverse
and remand with directions.
STATEMENT OF FACTS
On October 31, 2017, the State filed an information in case
No. CR 17-183 charging Sailors with count I, distribution of
methamphetamine, and count II, conspiracy to commit unlaw-
ful distribution of methamphetamine, with both charges alleged
to have occurred on or about May 30, 2017. See, Neb. Rev.
Stat. § 28-416(1)(a) (Reissue 2016); Neb. Rev. Stat. § 28-202
(Cum. Supp. 2020) (conspiracy defined). Although the infor-
mation alleged that the offenses occurred on or about May 30,
the affidavit in support of a “Probable Cause for Warrantless
Arrest” contained in case No. CR 17-183 alleged both that “a
Confidential Informant made a controlled purchase of $100
of methamphetamine” from Sailors on May 25, 2017, at a
specified address in Blue Springs, Nebraska, and that “[o]n
05/30/17 [the] Confidential Informant arranged another pur-
chase of methamphetamine from . . . Sailors,” but that when
the confidential informant arrived, other individuals were pres-
ent. The confidential informant attempted to purchase meth-
amphetamine from one of the other individuals. The affidavit
indicates that Sailors “was also present at the residence when
this occurred.”
The following year, on November 21, 2018, the State filed
a motion for leave to amend the information “to correct a

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STATE v. SAILORS
Cite as 29 Neb. App. 881
[scrivener’s] error made at the time of drafting Count I of the
Information as it relates to the offense date” to reflect that the
proper offense date should be “‘on or about May 25, 2017’,
to be consistent with the facts and evidence as reflected in
the Affidavit of Probable Cause.” (Emphasis in original.) This
motion also requested leave to dismiss count II without preju-
dice. Only days later, on November 27, the State moved to
dismiss case No. CR 17-183 in its entirety without prejudice,
alleging that the State had “discovered new information” and
would be pursuing “alternative charges.” The court granted the
State’s motion to dismiss on November 28.
Nearly 7 months later, on June 18, 2019, the State filed an
information in case No. CR 19-106, charging Sailors with dis-
tribution of methamphetamine within 1,000 feet of a school,
which offense was alleged to have occurred on May 25,
2017. See § 28-416(4)(a). The “Affidavit for Arrest Warrant”
related to this charge alleged that on May 25, “a confidential
informant . . . was utilized to conduct a controlled purchase of
methamphetamine from . . . Sailors at [the specified address]
in Blue Springs . . . .” The amount of methamphetamine pur-
chased was alleged to be worth $100. The affidavit further
alleged that the distribution occurred within 1,000 feet of an
elementary school.
In a journal entry and order entered on August 14, 2019,
issued in connection with a hearing held on that date, the dis-
trict court held, “[Sailors’] motion for absolute discharge to be
filed by October 16, 2019.” The entry later provided, “Case
continued to 10/30/2019 at 9:00 AM on motion of Defense in
District Courtroom 01 for Hearing [on] absolute discharge.”
(Emphasis omitted.) There is no record from that hearing in the
bill of exceptions which provides anything further as it relates
to that entry.
On October 15, 2019, Sailors filed a motion for absolute
discharge on the basis that his constitutional right to a speedy
trial had been violated. At the October 30 hearing, Sailors
argued that he should receive an absolute discharge based

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Nebraska Court of Appeals Advance Sheets
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STATE v. SAILORS
Cite as 29 Neb. App. 881
upon a violation of both his statutory and constitutional rights
to a speedy trial. Following the hearing on Sailors’ motion,
the district court entered an order granting Sailors’ motion for
absolute discharge based upon the violation of his right to a
speedy trial. The district court noted that “[t]he only differ-
ence between Count I in CR17-183 and CR19-106, besides
the offense date, is the allegation in CR19-106 that the offense
occurred within 1000 feet of a school zone” and that there
was “nothing in either transcript to suggest [Sailors] delivered
methamphetamine to anyone on May 30, 2017.” The court
further noted that “[w]hile the Affidavit for Arrest Warrant in
CR19-106 provides more detail, it does not change the nature
of the crime charged in Count I of CR17-183 or when it alleg-
edly occurred according to the Probable Cause for Warrantless
Arrest filed in that matter.” Additionally, the district court
stated that the charges were “factually the same based on a
review of both affidavits in the transcripts and the elements are
the same but for the addition of the allegation that the delivery
of a controlled substance occurred within 1000 feet of a school
zone in CR19-106.”
The court then stated that its conclusion was supported by
a further review of the record in case No. CR 17-183 and
the State’s November 21, 2018, “Motion for Leave to Amend
Information” filed 7 days prior to the scheduled start of the jury
trial in that matter in which the State requested leave to amend
the information to “dismiss Count II and to allege the proper
offense date ‘on or about May 25, 2017’, to be consistent with
the facts and evidence as reflected in the Affidavit of Probable
Cause.” (Emphasis in original.) The court noted, “It appears
that what was once argued to be a [scrivener’s] error involving
the offense date in CR17-183 is now argued to be a ‘charge
separate from that alleged in Count I of CR17-183.’”
The district court noted that because count I filed in case
No. CR 17-183 and count I filed in case No. CR 19-106
involved the same set of facts and were not distinguishable,
any speedy trial time charged against Sailors in case No.

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STATE v. SAILORS
Cite as 29 Neb. App. 881
CR 17-183 shall be tacked on to the current case. The court
noted that the tacking-and-tolling approach for determining
the statutory 6-month speedy trial period was applicable. The
district court explained:
Under the tacking-and-tolling approach, the time between
dismissal of an information and refiling is not includ-
able, or is tolled, for purposes of the statutory six-month
speedy trial period; however, any non-excludable time
that passed under the original information is tacked onto
any non-excludable time under the refiled information,
if the refiled information alleges (1) the same offense
charged in the previously dismissed information, . . .
(2) an offense committed simultaneously with a lesser-
included offense charged in the information previously
dismissed by the state, or (3) commission of a crime that
is a lesser-included offense of the crime charged in the
previously dismissed information. State v. Hettle, 288
Neb. 288, 848 N.W.2d 582 (2014).
(Emphasis in original.)
The district court rejected the State’s argument that the facts
alleged as filed in case No. CR 19-106 constituted an entirely
different set of facts from the prior information filed in case
No. CR 17-183. The court then noted that although it appeared
both parties had reviewed the record, only Sailors had con-
ducted a speedy trial analysis, and that his analysis, using the
tacking method, determined a combined 256 days had passed
since the filing of the informations in cases Nos. CR 17-184
and CR 19-106, exceeding the 6-month statutory speedy trial
period. The court noted:
[The State] simply argues [that the current case] is an
entirely different set of facts and appears to rest on that
argument without addressing a speedy trial calculation.
As noted above, that argument is not supported by the
facts contained in either affidavit contained in the tran-
scripts or the arguments made by the [State] in previ-
ous motions.

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STATE v. SAILORS
Cite as 29 Neb. App. 881
The court then found that the State had failed to meet its bur-
den of showing, by a preponderance of the evidence, that one
or more of the excluded time periods under the speedy trial
statute were applicable when more than 6 months had passed
since the filing of the informations. Further, the court held
that “[b]ecause the [State] has not presented any evidence that
one or more of the excludable periods under the speedy trial
statute are applicable under these circumstances, it has failed
to meet its burden of proof and [Sailors’] Motion for Absolute
Discharge should be granted.”
The State filed an application for leave to file an appeal,
which this court granted.
ASSIGNMENTS OF ERROR
The State contends that the district court erred in granting
Sailors’ motion for absolute discharge based upon its findings
that (1) the 2019 charge was not separate and distinct from the
2017 charge and (2) the State had failed to meet its burden of
proof by a preponderance of the evidence to overcome Sailors’
motion for absolute discharge.
STANDARD OF REVIEW
[1] Generally, a trial court’s determination as to whether
charges should be dismissed on speedy trial grounds is a fac-
tual question which will be affirmed on appeal unless clearly
erroneous. State v. Chapman, 307 Neb. 443, 949 N.W.2d 490
(2020); State v. Lovvorn, 303 Neb. 844, 932 N.W.2d 64 (2019).
ANALYSIS
Separate and Distinct Charges
The State’s first assignment of error is that the district
court erred in granting Sailors’ motion for absolute discharge
on speedy trial grounds, which was based upon the court’s
finding that the 2019 charge was not separate and distinct
from the 2017 charge. The State argues that the 2019 charge
was separate and distinct from the 2017 charge and that as a

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STATE v. SAILORS
Cite as 29 Neb. App. 881
result, the district court erred in utilizing the doctrine of tack-
ing and tolling.
The statutory right to a speedy trial is set forth in Neb.
Rev. Stat. §§ 29-1207 and 29-1208 (Reissue 2016). State v.
Chapman, supra. The speedy trial statutes set a 6-month dead-
line in which a defendant must be brought to trial, but also
provide that such time “shall be computed as provided in this
section.” § 29-1207(1). Section 29-1207(4) goes on to pro-
vide a number of circumstances in which the 6-month clock
to bring a defendant to trial is essentially stopped. State v.
Chapman, supra.
[2-5] To calculate the time for speedy trial purposes, a court
must exclude the day the complaint was filed, count forward 6
months, back up 1 day, and then add any time excluded under
§ 29-1207(4) to determine the last day the defendant can be
tried. State v. Chapman, supra. The burden of proof is upon
the State to show that one or more of the excluded time peri-
ods under § 29-1207(4) are applicable when the defendant is
not tried within 6 months. State v. Chapman, supra. The State
must prove the existence of excluded time by a preponder-
ance of the evidence. Id. Under § 29-1208, if a defendant is
not brought to trial before the 6-month deadline, as extended
by any excluded periods, expires, he or she is entitled to
absolute discharge from the offense charged and for any other
offense required by law to be joined with that offense. State v.
Chapman, supra.
[6,7] When an information is dismissed and later refiled,
the doctrine of tacking allows joining or combining periods
which have a nexus for continuity of time involved in sepa-
rated events or actions. State v. Sumstine, 239 Neb. 707, 478
N.W.2d 240 (1991). The Nebraska Supreme Court explained
the doctrine of tacking and tolling in State v. Hettle, 288 Neb.
288, 295, 848 N.W.2d 582, 590 (2014):
Under this tacking-and-tolling approach, the time between
dismissal of an information and refiling is not includ-
able, or is tolled, for purposes of the statutory 6-month

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STATE v. SAILORS
Cite as 29 Neb. App. 881
period. However, any nonexcludable time that passed
under the original information is tacked onto any non-
excludable time under the refiled information, if the
refiled information alleges (1) the same offense charged
in the previously dismissed information, (2) an offense
committed simultaneously with a lesser-included offense
charged in the information previously dismissed by the
State, or (3) commission of a crime that is a lesser-
included offense of the crime charged in the previously
dismissed information. Without this approach, whenever
a prosecutor desired a postponement of trial beyond the
statutory 6-month period, the State could regularly evade
the Nebraska speedy trial act simply by dismissing a
charge and refiling the same charge to acquire a new
6-month period.
Applying the foregoing, the district court was correct in
combining the nonexcludable time in case No. CR 17-183 with
that in case No. CR 19-106 if case No. CR 19-106 alleged
(1) the same offense charged in the previously dismissed
information, (2) an offense committed simultaneously with a
lesser-included offense charged in the information previously
dismissed by the State, or (3) commission of a crime that is a
lesser-included offense of the crime charged in the previously
dismissed information. See State v. Hettle, supra.
The State argues that the information filed in case No.
CR 17-183 related to a different offense from that filed in case
No. CR 19-106. In support thereof, the State argues that case
No. CR 17-183 related to the incident which took place on
May 30, 2017, where Sailors “arranged” for the purchase of
methamphetamine from a confidential informant, whereas case
No. CR 19-106 related to the incident which took place on
May 25, 2017, where Sailors actually sold methamphetamine
to a confidential informant. The State argues that because
these were independent incidents and crimes, one cannot be
combined with the other. During oral argument, the State
referred to the affidavit of “Probable Cause for Warrantless

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STATE v. SAILORS
Cite as 29 Neb. App. 881
Arrest” designated as “exhibit 4,” which mentions both the
May 25 sale of methamphetamine by Sailors and the May 30
purchase arranged by Sailors where the confidential informant
attempted to make a purchase from an individual at the same
residence. The State then asserted that count I in case No.
CR 17-183 related to the May 30 incident and not to the May
25 incident.
But contrary to the State’s argument here that the State
originally charged Sailors in case No. CR 17-183 with the
“arranged” buy which took place on May 30, 2017, the record
is inconsistent with that position. On October 31, the State
filed an information against Sailors alleging in count I that “on
or about May 30 . . . then in Gage County, Nebraska, [Sailors]
did knowingly or intentionally distribute, deliver, dispense, or
possess with intent to distribute, deliver, or dispense a con-
trolled substance, to wit: Methamphetamine, an exceptionally
hazardous drug.” The State also alleged in count II of that
same information that on or about that same date, Sailors con-
spired to distribute methamphetamine, but it later dismissed
count II when it sought to amend count I, as provided in more
detail below.
On November 21, 2018, approximately 7 days before the
scheduled jury trial in case No. CR 17-183, the State filed a
motion to “correct a [scrivener’s] error made at the time of
drafting Count I of the Information as it relates to the offense
date.” In connection with that filing, the State provided:
In support of the foregoing motion, [the State] states
that the offense in Count I - Delivery of a Controlled
Substance, Methamphetamine was alleged in the Affi-
davit of Probable Cause and as reflected in the reports
and evidence provided to counsel for [Sailors]. “The
District Court, before trial, may in its discretion permit
amendment of the criminal information, provided the
amendment does not change the nature or identity of the
offense charged and the amended information does not
charge a crime other than the one on which the accused

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STATE v. SAILORS
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had his preliminary examination.” State v. Costello, 199
Neb. 43, 356 N.W.2d 97 (1977) ([h]olding it was not error
to permit the amendment of the information on the day
before trial to correct the date of offense, as it did not
change the nature or identi[t]y of the crime charged). [The
State] further states that [Sailors] would not be prejudiced
by such an amendment.
Wherefore, [the State] requests that the Court enter an
Order allowing the State to amend the Information to dis-
miss Count II and to allege the proper offense date “on or
about May 25, 2017”, to be consistent with the facts and
evidence as reflected in the Affidavit of Probable Cause.
(Emphasis in original.) If there was any ambiguity as to the
date associated with the charge in count I of the information
in case No. CR 17-183, that ambiguity was resolved by the
State’s motion for leave to amend the information. In that fil-
ing, the State affirmatively represented to the court that the
date associated with the charge against Sailors in count I of
the information in case No. CR 17-183 was May 25, 2017. The
State cannot be heard to now argue that the charge in count I
of case No. CR 17-183 relates to a different date.
Having resolved that the district court did not err in find-
ing that the charge in count I of cases Nos. CR 17-183 and
CR 19-106 related to the same set of facts, we must next con-
sider whether the matters charged in cases Nos. CR 17-183
and CR 19-106 require the tacking of nonexcludable time in
calculating the time for speedy trial purposes.
A factual scenario similar to the instant case was considered
by the Nebraska Supreme Court in State v. Sumstine, 239 Neb.
707, 478 N.W.2d 240 (1991). In Sumstine, the State charged
the defendant in June 1989 with second degree arson, alleging
that she “intentionally set fire to her apartment building . . .
on April 29, 1989, a violation of Neb. Rev. Stat. § 28-503(1)
(Reissue 1989): ‘A person commits arson in the second degree
if he or she intentionally damages a building by starting a fire
. . . .’” 239 Neb. at 709, 478 N.W.2d at 242. In November

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1989, the State dismissed the information. In January 1990, the
State filed another information
charging [the defendant] with first degree arson, a viola-
tion of § 28-502(1), which states: “A person commits
arson in the first degree if he or she intentionally damages
a building by starting a fire . . . when another person is
present in the building at the time and either (a) the actor
knows that fact, or (b) the circumstances are such as to
render the presence of a person therein a reasonable prob-
ability.” The 1990 arson charge alleged that [the defend-
ant] set fire to her apartment building . . . on April 29,
1989, and, in accordance with § 28-502(1), contained the
allegation concerning a person’s presence in the building
set afire.
State v. Sumstine, 239 Neb. at 709, 478 N.W.2d at 242.
Thereafter, the defendant moved to dismiss the first degree
arson charge on the basis of violation of her statutory right to a
speedy trial. In arguing her dismissal before the district court,
the defendant
contended that the previous second degree arson charge
in 1989 was a “lesser grade felony” included within the
pending first degree arson charge in 1990; therefore, the
time during which the second degree charge was pending
should be “tacked” to the period of pendency for the first
degree arson charge, resulting in expiration of 6 months
without [the defendant’s] trial and entitling her to abso-
lute discharge from the first degree arson charge.
Id. at 710, 478 N.W.2d at 243. In considering whether the
defendant’s statutory right to a speedy trial had been violated,
the Nebraska Supreme Court stated:
The 	initial 	information 	charged 	[the 	defendant] 	with
second degree arson in intentionally setting fire to her
apartment building on April 29, 1989, a violation of
§ 28-503(1). The subsequent information charged [the
defendant] with intentionally setting fire to the same
building described in the initial information and setting

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STATE v. SAILORS
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that fire on the same date alleged in the initial informa-
tion. However, since the charge in the subsequent infor-
mation was first degree arson, the second information
contained the additional allegation that “another person”
was present in the apartment building when [the defend-
ant] allegedly set fire to the structure. See § 28-502(1).
As far as the record reflects, all information concerning
the arson charges was available to the State at the time
the initial information was filed in 1989. Therefore, with
the exception of the allegation concerning the presence
of another person within the building set afire, both
informations had the same allegation that [the defend-
ant] had intentionally set fire to her apartment building
on the specific date mentioned in the informations. The
identity of allegations for the arson offenses supplies a
legal and rational nexus for the two informations against
[the defendant]. Moreover, in describing a lesser-included
offense, we have stated: “To be a lesser-included offense,
the elements of the lesser offense must be such that
it is impossible to commit the greater offense without
simultaneously committing the lesser offense.” State v.
Olsan, 231 Neb. 214, 219, 436 N.W.2d 128, 132 (1989).
Consequently, the arson charged in the initial informa-
tion was a lesser-included offense of arson charged in
the subsequent information filed against [the defendant],
since, under Nebraska law applicable in the present case,
[the defendant], as charged by the informations, could not
have committed first degree arson without simultaneously
committing second degree arson.
State v. Sumstine, 239 Neb. 707, 716-17, 478 N.W.2d 240, 246
(1991). Having concluded that the matter charged in the first
information was a lesser-included offense of the matter charged
in the second, our Supreme Court held:
[W]hen the State dismisses an information against a
defendant and subsequently files an information against
the defendant which alleges (1) the same offense charged

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STATE v. SAILORS
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in the previously dismissed information, (2) an offense
committed simultaneously with a lesser-included offense
charged in the information previously dismissed by the
State, or (3) commission of a crime that is a lesser-
included offense of the crime charged in the previously
dismissed information, time which elapses during pend-
ency of the informations shall be charged against the
State in determining the last day for commencement
of a defendant’s trial pursuant to the Nebraska speedy
trial act.
Id. at 719, 478 N.W.2d at 247 (emphasis supplied).
[8,9] Applying the same principle here, we now look to
determine whether the State similarly charged a lesser-included
offense in case No. CR 17-183 of the one ultimately charged
by the State in case No. CR 19-106. In making that determina-
tion, we look to the elements of the crime and not to the facts
of the case. State v. Rocha, 295 Neb. 716, 890 N.W.2d 178
(2017). The test for determining whether a crime is a lesser-
included offense is whether the offense in question cannot be
committed without committing the lesser offense. Id.
In the instant case, Sailors was originally charged by infor-
mation with distribution of methamphetamine in violation of
§ 28-416(1)(a), which states that “[e]xcept as authorized by
the Uniform Controlled Substances Act, it shall be unlawful
for any person knowingly or intentionally: . . . To manufacture,
distribute, deliver, dispense, or possess with intent to manufac-
ture, distribute, deliver, or dispense a controlled substance[.]”
The subsequent information charged Sailors with a violation
of § 28-416(4)(a)(ii). Section 28-416(4)(a) describes, in perti-
nent part:
Except as authorized by the Uniform Controlled Sub-
stances Act, any person eighteen years of age or older
who knowingly or intentionally manufactures, distributes,
delivers, dispenses, or possesses with intent to manu-
facture, distribute, deliver, or dispense a controlled sub-
stance . . . (ii) in, on, or within one thousand feet of the

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real property comprising a public or private elementary,
vocational, or secondary school, a community college, a
public or private college, junior college, or university, or
a playground . . . .
From a review of the elements of each offense, it is appar-
ent that it is not possible to commit the greater offense of
knowingly or intentionally manufacturing, distributing, deliv-
ering, dispensing, or possessing with intent to manufacture,
distribute, deliver, or dispense a controlled substance in, on, or
within 1,000 feet of real property comprising a school, college,
university, or playground in violation of § 28-416(4)(a)(ii)
without also committing the offense of knowingly or inten-
tionally manufacturing, distributing, delivering, dispensing, or
possessing with intent to manufacture, distribute, deliver, or
dispense a controlled substance in violation of § 28-416(1)(a).
The greater offense found in § 28-416(4)(a)(ii) includes addi-
tional elements of requiring that the defendant be 18 years
of age and that the offense occur in, on, or within 1,000 feet
of real property comprising a school, college, university, or
playground. Thus, the statutory offense of § 28-416(1)(a) is a
lesser-included offense of § 28-416(4)(a)(ii).
Having determined that the 2019 offense was based upon
facts identical to those of the 2017 offense and that the 2017
charge was a lesser-included offense of the 2019 charge, we
hold the district court did not err in finding that the time which
elapsed during the pendency of the 2017 and 2019 informa-
tions should be combined in determining the last day for com-
mencement of Sailors’ trial pursuant to the Nebraska speedy
trial act. This assigned error fails.
Motion for Absolute Discharge
The State’s second assignment of error is that the district
court erred in finding that it had failed to meet its burden of
proof by a preponderance of the evidence to overcome Sailors’
motion for absolute discharge.
Before doing so, we first note that Sailors’ motion for
absolute discharge actually stated: “[T]he State did not bring

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[Sailors] to trial in a speedy fashion guaranteed and preserved
by Article I, Section 11, of the Constitution of the State of
Nebraska, and the Fifth, Sixth, and Fourteenth Amendments
to the United States Constitution.” Thus, on its face, Sailors’
motion asserted that he was entitled to discharge on consti-
tutional grounds and not under his statutory right to a speedy
trial as set forth in §§ 29-1207 and 29-1208. However, he did
argue a violation of his statutory right to a speedy trial during
the hearing on his motion for absolute discharge.
In making the assessment, the Nebraska Supreme Court
has held that “[w]hile the constitutional right to a speedy
trial and the statutory implementation of that right exist inde-
pendently 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” and 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. Lovvorn, 303 Neb.
844, 852, 932 N.W.2d 64, 70 (2019). Accordingly, because the
statutory speedy trial clock will inform our thinking govern-
ing Sailors’ constitutional challenge and because, during the
hearing, Sailors appeared to expand his motion to include a
challenge under Nebraska’s speedy trial statute, we would now
normally proceed to review the district court’s statutory speedy
trial calculation.
[10,11] The Nebraska Supreme Court explained in State v.
Lintz, 298 Neb. 103, 106-07, 902 N.W.2d 683, 686-87 (2017):
Addressing a claimed denial of statutory speedy trial
rights in a motion for discharge involves a relatively
simple mathematical computation of whether the 6-month
speedy trial clock, as extended by statutorily exclud-
able periods, has expired prior to the commencement of
trial. See State v. Williams, 277 Neb. 133, 761 N.W.2d
514 (2009). But in ruling on a motion to discharge, this
court unequivocally requires specific findings regarding
the statutorily excludable periods: “Effective March 9,

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2009, when ruling on a motion for absolute discharge
pursuant to [Neb. Rev. Stat.] § 29-1208 [(Reissue 2016)],
the trial court shall make specific findings of each period
of delay excludable under § 29-1207(4)(a) to (e), in addi-
tion to the findings under § 29-1207(4)(f) . . . . Such find-
ings shall include the date and nature of the proceedings,
circumstances, or rulings which initiated and concluded
each excludable period; the number of days composing
each excludable period; and the number of days remaining
in which the defendant may be brought to trial after tak-
ing into consideration all excludable periods.” (Emphasis
supplied.) State v. Williams, 277 Neb. at 143-44, 761
N.W.2d at 524. Therefore, the county court, as part of its
ruling on [the defendant’s] motion for absolute discharge,
was required to set forth the above calculation as part
of its findings in applying . . . § 29-1207(4)(d) (Reissue
2016), but it did not.
We require this calculation of any excludable days
pursuant to § 29-1207(4)(d) to facilitate appellate review.
See State v. Williams, supra. 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. See State v. Hettle, 288
Neb. 288, 848 N.W.2d 582 (2014). But we cannot review
whether the trial court’s determination of the facts is
erroneous unless such factual determination is complete.
Certainly, we appreciate the county court’s issuing a writ-
ten order, but without a computation as required by State
v. Williams, supra, we cannot conduct a proper review.
Here, the district court did not include a calculation of
excludable days in its order granting Sailors’ motion for abso-
lute discharge on speedy trial grounds. The district court’s
rationale for not including a speedy trial calculation was as
follows:
It appears both parties reviewed the record in this mat-
ter but only [Sailors] conducted a speedy trial analysis

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based on that record. [Sailors] suggests this matter should
be dismissed on speedy trial grounds because, apparently
using the tacking method, . . . he determined a combined
256 days have passed since the filing of the Informations
in CR17-183 and CR19-106, in excess of the statutory
six month period. [The State] simply argues this is an
entirely different set of facts and appears to rest on that
argument without addressing a speedy trial calculation.
As noted above, that argument is not supported by the
facts contained in either affidavit contained in the tran-
scripts or the arguments made by the [State] in previ-
ous motions.
The burden of proof is upon the State to show that one
or more of the excluded time periods under the speedy
trial statute are applicable when the defendant is not tried
within six months. To overcome a defendant’s motion for
discharge on speedy trial grounds, the State must prove
the existence of an excludable period by a preponderance
of the evidence. State v. Carrera, 25 Neb. App. 650, 911
N.W.2d 849 (2018).
On appeal, the State now argues that even if the two infor-
mations are combined, because of excludable periods during
the pendency of these proceedings, the speedy trial clock has
not run and the district court erred in granting Sailors’ motion
for discharge. Although the State did not make that argument
or provide that calculation during the hearing, that does not
abrogate the responsibility of the district court to provide a
computation of the speedy trial calculation in connection with
Sailors’ motion for discharge. Stated differently, even though
the State did not provide a calculation in connection with its
argument to the district court, the record provides a series of
pleadings, journal entries, and orders entered in connection
with both cases Nos. CR 17-183 and CR 19-106 in which
the statutory speedy trial calculation can and must be made.
Without that calculation, we cannot determine whether the dis-
trict court erred in granting Sailors’ motion for discharge.

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The concurrence and dissent asserts, “I disagree that the
district court was required to perform its own speedy trial
calculation in this instance, because the State did not produce
any evidence to avoid Sailors’ motion for absolute discharge
other than to argue the 2019 charge was separate and distinct
from the 2017 charge.” Although we agree the State made no
argument to contradict Sailors’ speedy trial calculation other
than to argue the 2017 and 2019 charges should not be tacked
together, we disagree that the State did not produce any evi-
dence to avoid Sailors’ motion for absolute discharge. The
record contains the pleadings, motions, journal entries, and
other filings necessary to make a speedy trial calculation. We
respectfully disagree that because the State did not argue to the
trial court that Sailors’ calculation was erroneous on any basis
other than that the two filings should not be tacked together,
it necessarily follows that the trial court must accept Sailors’
calculation of the speedy trial clock. We read State v. Lintz,
298 Neb. 103, 902 N.W.2d 683 (2017), as requiring the district
court to perform the calculation, regardless of whether the State
orally challenged Sailors’ calculation during the hearing, if the
State provided a record sufficient for the trial court to calcu-
late it. Here, the record is sufficient for the trial court to make
that calculation.
The obligation to exercise that function is significant here.
If the district court simply is required to accept Sailors’ cal-
culation because the State did not argue in opposition of
the calculation during the hearing, then the concurrence and
dissent is correct. Stated differently, if the appellate court is
required to accept Sailors’ calculation that when the case was
first dismissed on November 28, 2018, the State had only 43
days to bring Sailors to trial would certainly resolve this case
and a remand would serve no purpose. But if this court is not
required to accept Sailors’ calculation, which was not opposed
with argument (other than the State’s argument for the non-
application of tacking), we cannot say that a remand would
necessarily serve no purpose. Accordingly, we reverse, and

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remand to the district court with directions to perform a speedy
trial calculation as set forth in State v. Lintz, 298 Neb. 103, 902
N.W.2d 683 (2017), and State v. Williams, 277 Neb. 133, 761
N.W.2d 514 (2009).
CONCLUSION
In sum, we affirm that part of the district court’s order finding
that in performing a speedy trial calculation, the court should
combine all nonexcludable time in cases Nos. CR 17-183
and CR 19-106. However, having determined that the district
court erred in failing to perform a speedy trial calculation, we
reverse the judgment and remand the cause with directions for
the district court to perform a speedy trial calculation.
Affirmed in part, and in part reversed
and remanded with directions.
Bishop, Judge, concurring in part, and in part dissenting.
I agree with the majority opinion except for some portions
of the analysis related to whether the State met its burden of
proof on the motion for absolute discharge. I also disagree
with the majority’s decision to remand the matter to the district
court with directions to perform a speedy trial calculation. I
would simply overrule the State’s exceptions.
The majority relies on State v. Lintz, 298 Neb. 103, 902
N.W.2d 638 (2017), and State v. Williams, 277 Neb. 133, 761
N.W.2d 514 (2009), in determining that the district court was
required to include its own calculation of excludable days
when entering the order granting Sailors’ motion for absolute
discharge. I disagree that the district court was required to per-
form its own speedy trial calculation in this instance, because
the State did not produce any evidence to avoid Sailors’ motion
for absolute discharge other than to argue the 2019 charge
was separate and distinct from the 2017 charge. Notably,
despite it being the State’s burden to prove that one or more
of the excluded time periods under § 29-1207(4) are applicable
when the defendant is not tried within 6 months, see State v.

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Shipler, 17 Neb. App. 66, 758 N.W.2d 41 (2008), the State
nevertheless made no argument whatsoever to the trial court to
contradict, supplement, or in any way challenge Sailors’ speedy
trial calculation.
Further, I conclude that State v. Chapman, 307 Neb. 443,
949 N.W.2d 490 (2020), clarified the holdings relied upon by
the majority to avoid the necessity of requiring the trial court
to engage in such calculations under circumstances such as
those present here. The Nebraska Supreme Court stated:
While we have said that we cannot review a trial court’s
factual determinations for clear error if no such determi-
nations have been made, see Lintz, supra, that principle
would justify remand for additional factual findings only
when there is competent evidence in the record that
would allow the trial court to reach more than one factual
conclusion without committing clear error. In a case like
this one, however, where all agree that there is no compe-
tent evidence that would allow the county court to reason-
ably conclude that [the defendant] received notice of the
arraignment . . . remand would serve no purpose.
Because the State did not carry its burden to show that
any time was excluded from the speedy trial calculation
and because it did not bring [the defendant] to trial within
6 months of the filing of charges, [the defendant] was
entitled to absolute discharge.
State v. Chapman, 307 Neb. at 450-51, 949 N.W.2d at 495.
Similarly, in this case, the State did not carry its burden to
show the existence of any additional excludable time beyond
that represented by Sailors. Instead, as noted by the district
court, the State “simply argues this is an entirely different set
of facts and appears to rest on that argument without address-
ing a speedy trial calculation.” Therefore, as further noted by
the district court, “[b]ecause the [State] has not presented any
evidence that one or more of the excludable periods under the
speedy trial statute are applicable under these circumstances,
it has failed to meet its burden of proof and [Sailors’] Motion

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for Absolute Discharge should be granted.” I agree with the
district court that the State failed to meet its burden of proof to
establish excludable periods for speedy trial purposes; rather,
the State elected to stand solely on its position that the 2019
charge was separate and distinct from the 2017 charge.
To avoid a defendant’s absolute discharge from an offense
charged, as dictated by § 29-1208, the State must prove by
a preponderance of the evidence the existence of a period
of time which is authorized by § 29-1207(4) to be excluded
in computing the time for commencement of the defendant’s
trial. State v. Baird, 259 Neb. 245, 609 N.W.2d 349 (2000). As
specifically pointed out by the district court in its December
26, 2019, order, only Sailors conducted a speedy trial analy-
sis based on the record and determined that “a combined
256 days have passed” in “excess of the statutory [6-month]
period.” It is evident from the record before us that the infor-
mation in case No. CR 17-183 was filed on October 31, 2017,
and that therefore, the 6-month speedy trial date would have
fallen on April 30, 2018. The case was dismissed at the State’s
request on November 28, which was 212 days past the speedy
trial date. Sailors’ motion for absolute discharge reflects dates
from December 20, 2017, until a scheduled trial date of
August 31, 2018, that total approximately 255 days, which
were excludable because of motions filed by Sailors. See
§ 29-1207(4)(b) (excluded periods include periods of delay
resulting from continuances granted at request or with con-
sent of defendant or his or her counsel). When the case was
dismissed on November 28, it was 212 days past the speedy
trial date. Taking into account the 255 excludable days based
upon Sailors’ representations would have left 43 days for the
State to bring Sailors to trial once it filed the information in
case No. CR 19-106 on June 18, 2019. That means Sailors’
speedy trial date would have run on August 1, unless there
were additional excludable periods. Sailors verbally informed
the court of his intent to file for absolute discharge on August
14, and the motion was filed on October 15. At the hearing

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on the motion for absolute discharge, the State offered no evi-
dence, nor even argued, about any periods of time that should
be excluded when conducting a speedy trial calculation.
The 	only 	competent 	evidence 	presented 	to 	the 	district
court regarding excludable periods of time was presented by
Sailors; the State chose to present none. Therefore, since there
was no competent evidence in the record for the trial court to
reach any other conclusion than it did, a remand would serve
no purpose. See State v. Chapman, 307 Neb. 443, 949 N.W.2d
490 (2020).