State v. Hettle

288 	288 NEBRASKA REPORTS
State of NebraSka, appellee, v. logaN H ettle, appellaNt.
848 N.W.2d 582
Filed June 6, 2014. 	No. S-13-661.
1. Judgments: Speedy Trial: Appeal and Error. As a general rule, 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. The meaning and interpretation of a statute
are questions of law, which an appellate court reviews independently of the
lower court.
3. Speedy Trial: Other Acts. If a defendant is not brought to trial before the run-
ning of the time for trial under Neb. Rev. Stat. § 29-1207 (Cum. Supp. 2012),
as extended by excluded time periods, the defendant shall be entitled to absolute
discharge from the offense charged and for any other offense required by law to
be joined with that offense.
4. Speedy Trial: Complaints: Indictments and Informations. For cases com-
menced with a complaint in county court but thereafter bound over to district
court, the 6-month statutory speedy trial period does not commence until the
filing of the information in district court.
5. Speedy Trial: Complaints. In cases commenced and tried in county court, the
6-month period within which an accused must be brought to trial begins to run on
the date the complaint is filed.
6. Speedy Trial. It is axiomatic that under the speedy trial statutes, an accused can-
not and should not be permitted to take advantage of a delay where the accused
is responsible for the delay by either action or inaction.
7. Speedy Trial: Indictments and Informations: Lesser-Included Offenses.
Under the tacking-and-tolling approach, the time between dismissal of an infor-
mation and refiling is not includable, or is tolled, for purposes of the statutory
6-month period. However, any nonexcludable time that passed under the original
information is tacked onto any nonexcludable 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.
8. Speedy Trial: Indictments and Informations: Complaints. If the amendment to
the complaint or information does not change the nature of the charge, then the
time continues to run against the State for purposes of the speedy trial act.
9. Indictments and Informations: Complaints: Other Acts. If the second com-
plaint alleges a different crime, without charging the original crime(s), then it
is an amended complaint or information and it supersedes the prior complaint
or information.
10. ____: ____: ____. The original charges have not been “abandoned” or “dis-
missed” when an amended complaint or information continues to make those
charges, but additionally charges a different crime.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:34 AM CST

STATE v. HETTLE 	289
Cite as 288 Neb. 288
11. 	Speedy Trial. If there is no abandonment or dismissal of charges, a tacking-and-
tolling analysis is superfluous to those charges.
12. Speedy Trial: Indictments and Informations. It is logically inconsistent that
time pending under abandoned and dismissed charges ought to tack onto time
pending under the amended information that supposedly abandoned and dis-
missed those very same charges.
13. Indictments and Informations: Complaints. While two complaints or informa-
tions cannot coexist at the same moment, it does not necessarily follow that every
act or motion made under a superseded complaint or information is dismissed,
abandoned, or extinguished by operation of law.
14. Indictments and Informations: Other Acts. A prior defense motion for indefi-
nite continuance remains effective as to all charges in an amended information
when the amended information charges some of the same crimes as the preceding
information, as well as additional crimes unrelated to the same facts of the pre-
ceding information.
15. Speedy Trial: Statutes: Intent: Waiver: Appeal and Error. There is no lan-
guage in Neb. Rev. Stat. § 29-1207(4)(b) (Cum. Supp. 2012) indicating intent
to limit the scope of the waiver provided therein, and an appellate court will not
read into the statute a meaning that was not there.
16. Motions for Continuance: Indictments and Informations. Without severance
of the individual charges from the pending prosecution, a motion for contin-
uance is not applied piecemeal to certain charges under the information, but not
to others.
17. 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. The constitu-
tional right to a speedy trial and the statutory implementation of that right exist
independently of each other.
18. ____: ____. Neb. Rev. Stat. § 29-1207 (Cum. Supp. 2012) provides a useful stan-
dard for assessing whether the length of a trial delay is unreasonable under the
U.S. and Nebraska Constitutions.
19. Speedy Trial: Words and Phrases. A speedy trial, generally, is one conducted
according to prevailing rules and proceedings of law, free from arbitrary, vexa-
tious, and oppressive delay.
20. Speedy Trial: Waiver. If delay is attributable to the defendant, then the defend-
ant’s waiver of his or her right to a speedy trial may be given effect under stan-
dard waiver doctrine.
21. Attorney and Client: Time. Because the attorney is the defendant’s agent when
acting, or failing to act, in furtherance of the litigation, delay caused by the
defendant’s counsel is charged to the defendant.
22. Constitutional Law: Speedy Trial. Barring extraordinary circumstances, a
defendant’s constitutional right to a speedy trial is not denied when the defendant
does not want a speedy trial.
23. Constitutional Law: Criminal Law: Pretrial Procedure: Time. The Fifth
Amendment has only a limited role to play in protecting against oppressive delay
in the criminal context.

290 	288 NEBRASKA REPORTS
Appeal from the District Court for Seward County: Jeffre
CHeuvroNt, District Judge, Retired. Affirmed.
James R. Mowbray and Sarah P. Newell, of Nebraska
Commission on Public Advocacy, for appellant.
Jon Bruning, Attorney General, and Kimberly A. Klein for
appellee.
H eaviCaN, C.J., WrigHt, C oNNolly, StepHaN, MCC orMaCk,
M iller-lerMaN, and CaSSel, JJ.
MCC orMaCk, J.
NATURE OF CASE
The defendant appeals from the denial of his motion for
absolute discharge, alleging that the delay in bringing him to
trial violated his statutory and constitutional rights to a speedy
trial and his right to due process. At issue is whether the
defendant’s indefinite motion for continuance was automati-
cally extinguished by the State’s amended information, thereby
relieving the defendant of his duty under Neb. Rev. Stat.
§ 29-1207(4)(b) (Cum. Supp. 2012) to give notice of request
for trial in order to end the continuance and its accompanying
statutory waiver of the right to a speedy trial. We affirm the
judgment of the district court.
BACKGROUND
On November 12, 2010, a complaint was filed in county
court alleging seven counts against Logan Hettle. Count 1 was
sexual penetration of T.S. without consent on or about August
1 through 31, 2009. Count 2 was knowingly restraining or
abducting T.S. on or about August 1 through 31, 2009. Count 3
was sexual penetration of L.F. without consent on or about
July 4 through August 31, 2010. Count 4 was sexual contact
of L.F. without consent on or about July 4 through August 31,
2010. Count 5 was sexual contact of T.S. without consent on
or about August 1 through 31, 2009. Count 6 was attempted
sexual contact of A.S. without consent on or about October 5,
2009. Count 7 was sexual contact of C.N. without consent on
or about June 1 through August 31, 2008.

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Cite as 288 Neb. 288
On January 19, 2011, counts 1 through 3 were bound over
to district court and counts 4 through 7 were dismissed. On
February 2, the State filed an information in district court
charging four counts against Hettle. Count 1 charged sexual
penetration of T.S. without consent on or about August 1
through 31, 2009, a Class II felony. Count 2 charged restrain-
ing or abducting T.S. under terrorizing circumstances or risk of
serious bodily injury on or about August 1 through 31, 2009,
a Class IIIA felony. Count 3 charged sexual penetration of
L.F. without consent on or about July 4 through August 31,
2010, a Class II felony. Count 4 charged sexual contact of L.F.
without consent on or about July 4 through August 31, 2010, a
Class I misdemeanor.
Hettle was arraigned. On February 14, 2011, defense coun-
sel filed a motion to transfer to juvenile court, which was
denied on April 12. A defense motion for discovery made on
June 1 was ruled on June 27. On July 19, the court appointed
the Commission on Public Advocacy (the Commission) to rep-
resent Hettle. On July 21, the Commission asked for a contin-
uance for research and discovery, with no stated end date. On
August 4, the Commission moved for release of a video, which
was ordered released on August 5.
On December 12, 2011, the State filed an amended informa-
tion alleging five counts. Count 1 was identical to count 1 of
the original information. Count 2 charged the same crime of
sexual penetration of L.F. without consent, but extended the
date range to May 1 through September 31, 2009. Count 3
charged the same crime of sexual penetration of L.F. with-
out consent, but narrowed the date to on or about July 4,
2010. Count 4 increased the charge to sexual penetration
of L.F. without consent, a Class II felony, and narrowed
the date to on or about August 6, 2010. Count 5 charged
attempted sexual assault of A.S. on or about October 5, 2009,
a Class II misdemeanor.
On December 30, 2011, Hettle moved to sever counts 1 and
5 from counts 2 through 4.
For reasons that are not clear from the record, on March
28, 2012, a probable cause hearing was held in county court
wherein the court found probable cause as to counts 1 through

292 	288 NEBRASKA REPORTS
4, but dismissed count 5 of the amended information. Hettle’s
objection to the county court’s jurisdiction was overruled, and
the case was bound over again to district court.
On October 22, 2012, the district court denied Hettle’s
December 30, 2011, motion to sever. That same date, the court
scheduled trial for April 2 through 5, 2013. Hettle lodged no
objection to the proposed trial date. Instead, when the district
court asked the Commission, “Unless you have time earlier,
then we could bump somebody else,” the Commission replied,
“It’s up to the Court. I don’t know what you want to do. That’s
fine, Judge.”
On April 1, 2013, Hettle filed a motion for absolute discharge
under § 29-1207(3); article I, § 11, of the Constitution of the
State of Nebraska; and the 5th, 6th, and 14th Amendments to
the U.S. Constitution. Hettle has been free on bail during the
entire pendency of the charges against him. The court denied
the motion for discharge, and Hettle appeals.
ASSIGNMENT OF ERROR
Hettle assigns that the district court erred in overruling his
motion for absolute discharge.
STANDARD OF REVIEW
[1] As a general rule, 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.1
[2] The meaning and interpretation of a statute are questions
of law, which we review independently of the lower court.2
ANALYSIS
Statutory rigHt to
Speedy trial
[3-5] If a defendant is not brought to trial before the run-
ning of the time for trial under § 29-1207, as extended by
excluded time periods, the defendant shall be entitled to
1 State v. Mortensen, 287 Neb. 158, 841 N.W.2d 393 (2014).
2 See id.

STATE v. HETTLE 	293
Cite as 288 Neb. 288
absolute discharge from the offense charged and for any
other offense required by law to be joined with that offense.3
For cases commenced with a complaint in county court but
thereafter bound over to district court, the 6-month statutory
speedy trial period does not commence until the filing of the
information in district court.4 In cases commenced and tried
in county court, the 6-month period within which an accused
must be brought to trial begins to run on the date the com-
plaint is filed.5
[6] It is axiomatic that under the speedy trial statutes, an
accused cannot and should not be permitted to take advantage
of a delay where the accused is responsible for the delay by
either action or inaction.6 Section 29-1207(4)(b) specifically
provides that the period of delay resulting from a continuance
granted at the request or with the consent of the defendant
or his or her counsel is to be excluded in computing the
time for trial. A 2010 amendment to § 29-1207(4)(b) fur-
ther elaborates:
A defendant who has sought and obtained a continuance
which is indefinite has an affirmative duty to end the con-
tinuance by giving notice of request for trial or the court
can end the continuance by setting a trial date. When the
court ends an indefinite continuance by setting a trial
date, the excludable period resulting from the indefinite
continuance ends on the date for which trial commences.
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
3 See Neb. Rev. Stat. § 29-1208 (Cum. Supp. 2012).
4 See, State v. Karch, 263 Neb. 230, 639 N.W.2d 118 (2002); State v.
Boslau, 258 Neb. 39, 601 N.W.2d 769 (1999).
5 State v. French, 262 Neb. 664, 633 N.W.2d 908 (2001); State v. Hutton, 11
Neb. App. 286, 648 N.W.2d 322 (2002). See, also, State v. Curry, 18 Neb.
App. 284, 790 N.W.2d 441 (2010).
6 See, State v. Mortensen, supra note 1; State v. Turner, 252 Neb. 620, 564
N.W.2d 231 (1997). See, also, State v. Fatica, 214 Neb. 776, 336 N.W.2d
101 (1983), overruled on other grounds, State v. Murphy, 225 Neb. 797,
587 N.W.2d 384 (1998).

294 	288 NEBRASKA REPORTS
or her counsel extends the trial date beyond the statutory
six-month period.
In State v. Mortensen,7 we explained that § 29-1207(4)(b)
“provides for a permanent waiver of the statutory right to a
speedy trial.” We observed that “[t]here is no language in the
statute that indicates an intent to limit the scope of the waiver
provided therein,” and we refused to read into the statute a
meaning that was not there.8
Hettle concedes that when the newly appointed Commission
filed its motion to continue on July 21, 2011, the 6-month
statutory period had not yet run. The motion stated:
COMES NOW [Hettle], by and through counsel and
moves this Court to continue the trial currently scheduled
for August 2, 2011 for the reason that the . . . Commission
. . . was appointed to represent [Hettle] on July 19, 2011
and that further time is needed for case research and dis-
covery purposes.
The motion was for an indefinite continuance.9 The district
court granted the motion.
Hettle never gave the district court notice thereafter of
request for trial. Although the court eventually set a trial date,
due to Hettle’s motion for discharge, trial has not commenced.
The district court, in denying Hettle’s motion for absolute dis-
charge under § 29-1207, concluded that the continuance has
not ended and that Hettle waived his right to a speedy trial.
We agree.
Hettle gives no particular reason why his counsel failed to
give the district court notice of request for trial. He instead
presents a complex argument as to how the State’s amendment
of the charges on December 12, 2011, operated as a matter
of law to abandon and dismiss the original information and
thereby extinguish his motion for indefinite continuance. At
the same time, Hettle argues that the nonexcludable time that
passed under the original information should be tacked onto
7 State v. Mortensen, supra note 1, 287 Neb. at 165, 841 N.W.2d at 400.
8 Id.
9 See, State v. Schmader, 13 Neb. App. 321, 691 N.W.2d 559 (2005); State
v. Dailey, 10 Neb. App. 793, 639 N.W.2d 141 (2002).

STATE v. HETTLE 	295
Cite as 288 Neb. 288
the nonexcludable time that passed under the amended infor-
mation. With such extinguishment of the motion for continu-
ance and tacking of nonexcludable periods, Hettle argues the
6-month statutory period was exceeded by January 2013.10
[7] Hettle’s arguments stem from case law in which we
combined 	tacking 	and 	tolling 	in 	calculating 	the 	6-month
statutory speedy trial period. Under this tacking-and-tolling
approach, the time between dismissal of an information and
refiling is not includable, or is tolled, for purposes of the
statutory 6-month period.11 However, any nonexcludable time
that passed under the original information is tacked onto
any nonexcludable 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) commis-
sion of a crime that is a lesser-included offense of the crime
charged in the previously dismissed information.12 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 dis-
missing a charge and refiling the same charge to acquire a new
6-month period.13
In State v. French,14 we considered what periods of time
are tacked onto a refiled complaint charging the same offense
as the original complaint when an intervening amended com-
plaint had dropped the original charged offenses in favor of
different offenses. Put another way, we considered whether
the period of time before dismissal that was pending under
an amended complaint that charged none of the same crimes
as the refiled complaint was, like a period during actual
10 See brief for appellant at 12.
11 State v. Batiste, 231 Neb. 481, 437 N.W.2d 125 (1989), disapproved on
other grounds, State v. Pettit, 233 Neb. 436, 445 N.W.2d 890.
12 See State v. Sumstine, 239 Neb. 707, 478 N.W.2d 240 (1991). See, also,
State v. Trammell, 240 Neb. 724, 484 N.W.2d 263 (1992).
13 See State v. Sumstine, supra note 12.
14 State v. French, supra note 5.

296 	288 NEBRASKA REPORTS
dismissal, tolled for purposes of the statutory speedy trial
calculation. We held that only the nonexcluded time pending
under the original complaint that charged the same offenses as
the refiled complaint could be tacked with the time pending
under the refiled complaint. The speedy trial clock did not run
during the period of the abandoned amended complaint.
[8,9] We said in French that the amended complaint, which
“charges 	a 	different 	crime, 	without 	charging 	the 	original
crime(s),” acted as a “dismissal” or “abandonment” of the
original complaint.15 We explained in this regard that a dis-
tinction should be made between an “amendment to” a com-
plaint or information and an “amended” complaint or informa-
tion, stating:
If the amendment to the complaint or information does
not change the nature of the charge, then obviously the
time continues to run against the State for purposes of the
speedy trial act. If the second complaint alleges a differ-
ent crime, without charging the original crime(s), then it
is an amended complaint or information and it supersedes
the prior complaint or information.16
From this tacking-and-tolling case law, Hettle asserts four
legal premises. First, Hettle asserts that an information alleg-
ing a different crime, but also alleging the original crimes, is
an “amended” information, not an “amendment to” the infor-
mation, and therefore operates as a dismissal and abandon-
ment of the original information in its entirety. Second, Hettle
asserts that if the original information is thus dismissed and
abandoned, any outstanding defense motions are automati-
cally extinguished. Third, Hettle asserts that nonexcluded time
pending in the district court under a dismissed and abandoned
information was not, like his motions, extinguished, and must
be tacked onto the time pending for the same charges under the
amended information. Finally, in contravention of the author-
ity already set forth above,17 Hettle asserts that the time the
15 Id. at 670, 633 N.W.2d at 914.
16 Id.
17 See, State v. Karch, supra note 4; State v. Boslau, supra note 4.

STATE v. HETTLE 	297
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“new” misdemeanor charge was pending briefly in county
court should be tacked to the time pending for that charge
under the amended information in district court.
Applying these assertions more specifically to the facts
of this case, Hettle argues that all the felony counts of the
amended information relate to the same incidents or were com-
mitted simultaneously with the felonies alleged in the original
information. The State agrees. Hettle then asserts that the mis-
demeanor charge was never properly dismissed by the county
court. Again, the State agrees. Hettle asserts that the addition
of this new misdemeanor charge transformed the amended
information into a dismissal and abandonment of the original
information, pursuant to French. Here, the State and Hettle
part ways.
Hettle concedes that the prolonged period of time his motions
were pending in district court under the amended information
were excludable; therefore, extinguishing his indefinite con-
tinuance, alone, would not put the trial beyond the 6-month
statutory period. Hettle asserts, however, that the period of
nonexcludable time pending for the felony charges under the
original information in district court and the nonexcludable
time the misdemeanor charge was pending in county court
should be tacked onto the nonexcludable time pending under
the amended information. The State has characterized this as
Hettle’s trying to “have [his] cake and eat it, too.”
We have never addressed tacking and tolling when the
amended information charges a different crime but also the
original crimes. We begin by observing that other courts
consistently hold under such circumstances that the original
and new charges run on different speedy trial clocks, so long
as the “new” charge was not one required to be joined with
the original charges under double jeopardy principles.18 The
18 See, U.S. v. Walker, 545 F.3d 1081 (D.C. Cir. 2008); U.S. v. Young, 528
F.3d 1294 (11th Cir. 2008); U.S. v. Alford, 142 F.3d 825 (5th Cir. 1998);
United States v. Heldt, 745 F.2d 1275 (9th Cir. 1984); U.S. v. Howard, 63
F. Supp. 2d 728 (E.D. Va. 1999); Clevenger v. State, 967 So. 2d 1039 (Fla.
App. 2007); People v. Davis, 369 Ill. App. 3d 384, 867 N.E.2d 987, 311
Ill. Dec. 1 (2006).

298 	288 NEBRASKA REPORTS
original charges continue with the same speedy trial clock,
while the new charges begin with their own new speedy
trial clock.19
The reason for such a rule is that as to the charges the gov-
ernment is not required to join with the offenses previously
charged, the government could easily obtain a “fresh speedy
trial clock” by simply waiting until completion of the prosecu-
tion for the original charges and beginning a new prosecution
on the additional charges.20 And there is
no logical basis for concluding that, when the government
chooses to add in a superseding indictment charges that it
is not required to join with the charges contained in the
original indictment, it must bring the defendant to trial on
the added charges within the time period remaining on the
speedy trial clock applicable to the charges contained in
the original indictment.21
We agree with this reasoning. Whether there may be any
other objection to the joinder of the original and the addi-
tional charges is another question not pertinent to the issue
before us.
[10,11] We derive from this, and it comports with common
sense, that the original charges have not been “abandoned” or
“dismissed” when an amended complaint or information con-
tinues to make those charges, but additionally charges a differ-
ent crime. The time continues to run as to the charges that have
not changed. If there is no abandonment or dismissal of the
charges, a tacking-and-tolling analysis is superfluous.
[12] Thus, assuming for the moment that tacking-and-tolling
case law translates in any way to the affirmative duty under
§ 29-1207(4)(b), the motion for continuance would at most
be extinguished as to the new misdemeanor crime alleged
in the amended information. We agree with the State that
Hettle belies this very point by arguing that the time pending
under the original information for the felony charges should
19 See id.
20 U.S. v. Alford, supra note 18, 142 F.3d at 829.
21 Id.

STATE v. HETTLE 	299
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be tacked onto the time pending for the felony charges under
the amended information. It is logically inconsistent that time
pending under abandoned and dismissed charges ought to tack
onto time pending under the amended information that sup-
posedly abandoned and dismissed those very same charges.
Charges are either the same or different. They cannot be dif-
ferent for purposes of extinguishing a motion for continuance
but the same for purposes of effectively continuing to run the
statutory speedy trial clock.
[13] However, we do not accept the premise that a French
“dismissal” of the preceding information, or any part thereof,
is determinative of whether an indefinite motion for contin-
uance has been extinguished. We doubt that in other circum-
stances, where a favorable motion or order had been made
under the preceding information, Hettle would venture such an
argument. While certainly two complaints or informations can-
not coexist at the same moment, it does not necessarily follow
that every act or motion made under a superseded complaint
or information is dismissed, abandoned, or extinguished by
operation of law.
In fact, at least one court has held that prior tolling motions
continue to apply to cases refiled after actual dismissals, so long
as the refiled charges arose from the same or related incidents
or acts of the dismissed indictment, complaint, or information.22
And courts that have addressed the question of amendments
charging both new and old crimes hold that a defense motion
for continuance or similar tolling motion remains effective as
to both the new and old charges, regardless of the tacking-
and-tolling speedy trial analysis applicable to those charges.23
The Fifth Circuit Court of Appeals in U.S. v. Gonzales24
stated, “Unless the district court has ruled that the superseding
indictment moots the pending motions,” “motions pending on
the original charges toll the running of the speedy-trial clock
22 See Palmer v. State, 76 So. 3d 1016 (Fla. App. 2011).
23 U.S. v. Gonzales, 897 F.2d 1312 (5th Cir. 1990); Atkins v. State, 785 So.
2d 1219 (Fla. App. 2001); State v. Blackburn, 118 Ohio St. 3d 163, 887
N.E.2d 319 (2008).
24 U.S. v. Gonzales, supra note 23, 897 F.2d at 1316-17.

300 	288 NEBRASKA REPORTS
for the new charges, regardless of when the clock begins to
run for the new charges.” Such a rule is not prejudicial to the
defendant, who can easily start the clock running again by
invoking a demand for a speedy trial.25
[14,15] Admittedly, no court has addressed the very pre-
cise question of whether a prior defense motion for indefinite
continuance remains effective as to all charges in an amended
information when the amended information charges some of
the same crimes as the preceding information, as well as
additional crimes unrelated to the same facts of the preceding
information. But we find that the mandate of § 29-1207(4)(b)
is clear. As we said in State v. Mortensen, there is no language
in the statute indicating intent to limit the scope of the waiver
provided therein, and we will not read into the statute a mean-
ing that was not there.26
[16] We have no basis from which to conclude that the
Legislature intended a motion for indefinite continuance in an
ongoing prosecution under the same case number to apply only
to those charges that were pending at the time the motion was
made, but not as to any charges later added by amendment.
It would make little sense to apply a motion for continuance,
based on the general need to prepare for trial, to only old
charges and not new. Motions for continuance are to continue
the trial. Without severance of the individual charges from the
pending prosecution, a motion for continuance is not applied
piecemeal to certain charges under the information, but not
to others. And as one court has explained, tolling motions
that operate by law do not require, at the time they are made,
knowledge of future additional charges.27
If Hettle no longer wished for his indefinite motion for con-
tinuance to remain operative as a waiver to his statutory right
to a speedy trial, he could have easily given the court notice
of his request for trial, in accordance with § 29-1207(4)(b).
He did not do so. While Hettle argues that it should have been
25 Atkins v. State, supra note 23.
26 State v. Mortensen, supra note 1.
27 See State v. Blackburn, supra note 23.

STATE v. HETTLE 	301
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apparent that he no longer needed time to prepare for trial,
the statute puts the onus on the defendant. The State has no
obligation to second-guess the defendant’s strategic decisions,
although it would have been free to press for a speedier trial
for the public interest in avoiding stale evidence, a backlog
in the court, and opportunities for the accused to commit
other crimes.28
The State’s addition of the misdemeanor charge to the
information 	did 	not 	change 	Hettle’s 	obligations 	under
§ 29-1207(4)(b). Therefore, as provided in § 29-1207(4)(b), the
waiver and excludable period under the motion for continuance
did not end until either Hettle gave the court notice of trial or
a trial commenced on the court’s own motion. Because neither
of those events has occurred, the 6-month statutory period has
not run and Hettle’s motion for absolute discharge was prop-
erly denied.
C oNStitutioNal rigHt
to Speedy trial
[17,18] Hettle next argues that the court erred in denying
his motion for discharge based on the constitutional right to
a speedy trial. The constitutional right to a speedy trial is
guaranteed by U.S. Const. amend. VI and Neb. Const. art. I,
§ 11. The constitutional right to a speedy trial and the statu-
tory implementation of that right exist independently of each
other.29 Nevertheless, § 29-1207 provides a useful standard for
assessing whether the length of a trial delay is unreasonable
under the U.S. and Nebraska Constitutions.30 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.31
[19] A speedy trial, generally, is one conducted according
to prevailing rules and proceedings of law, free from arbitrary,
28 See Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101
(1972).
29 See State v. Loyd, 269 Neb. 762, 696 N.W.2d 860 (2005).
30 See State v. Schmader, supra note 9.
31 State v. Trammell, supra note 12.

302 	288 NEBRASKA REPORTS
vexatious, and oppressive delay.32 But the right is “generi-
cally different from any of the other rights enshrined in the
Constitution for the protection of the accused.”33
It is different, first, because “[i]n addition to the general
concern that all accused persons be treated according to decent
and fair procedures, there is a societal interest in providing a
speedy trial which exists separate from, and at times in opposi-
tion to, the interests of the accused.”34
Second, the right is unique because “deprivation of the right
may work to the accused’s advantage.”35 The U.S. Supreme
Court explained:
Delay is not an uncommon defense tactic. As the time
between the commission of the crime and trial lengthens,
witnesses may become unavailable or their memories
may fade. If the witnesses support the prosecution, its
case will be weakened, sometimes seriously so. And it is
the prosecution which carries the burden of proof. Thus,
unlike the right to counsel or the right to be free from
compelled self-incrimination, deprivation of the right to
speedy trial does not per se prejudice the accused’s ability
to defend himself.36
Finally, the constitutional speedy trial right is unique because
it “is a more vague concept than other procedural rights.”37
There is “no fixed point” when it can be determined “how long
is too long in a system where justice is supposed to be swift
but deliberate.”38
Before the U.S. Supreme Court case of Barker v. Wingo,39
two rigid approaches were taken by other jurisdictions to
32 State v. McNitt, 216 Neb. 837, 346 N.W.2d 259 (1984).
33 Barker v. Wingo, supra note 28, 407 U.S. at 519.
34 Id.
35 Id., 407 U.S. at 521.
36 Id.
37 Id.
38 Id.
39 Barker v. Wingo, supra note 28.

STATE v. HETTLE 	303
Cite as 288 Neb. 288
analyze the constitutional speedy trial right. Some courts set a
specific period of time beyond which the constitutional right
was deemed violated as a matter of law. Other courts adopted
a “demand-waiver doctrine” wherein “a defendant waives any
consideration of his right to speedy trial for any period prior
to which he has not demanded a trial.”40 In Barker v. Wingo,
the Court rejected the rule that the defendant be offered a trial
within a specified time period, concluding that such a rule
would require the Court to engage in legislative or rulemaking
activity. The Court also rejected the approach that restricted
considerations of the speedy trial right to those cases in which
the accused had demanded a speedy trial.41
[20] The Court instead developed a balancing test to deter-
mine whether a defendant’s constitutional right to a speedy
trial has been violated.42 This balancing test involves four fac-
tors: (1) the length of the delay, (2) the reason for the delay,
(3) the defendant’s assertion of the right, and (4) prejudice
to the defendant.43 However, the Court also said: “We hardly
need add that if delay is attributable to the defendant, then his
waiver may be given effect under standard waiver doctrine, the
demand rule aside.”44
[21] Subsequently, in Vermont v. Brillon,45 the Court seemed
to reaffirm the general principle that delay attributable to the
defendant may be given effect under the standard waiver doc-
trine. The Court also clarified that because the attorney is the
defendant’s agent when acting, or failing to act, in furtherance
of the litigation, delay caused by the defendant’s counsel is
charged to the defendant. This is true, the Court held, whether
counsel is privately retained or publicly assigned.46
40 Id., 407 U.S. at 525.
41 Id.
42 See State v. Loyd, supra note 29.
43 See id.
44 Barker v. Wingo, supra note 28, 407 U.S. at 529.
45 Vermont v. Brillon, 556 U.S. 81, 129 S. Ct. 1283, 173 L. Ed. 2d 231
(2009).
46 Id.

304 	288 NEBRASKA REPORTS
[22] We have held that, barring extraordinary circum-
stances, a defendant’s constitutional right to a speedy trial is
not denied when the defendant does not want a speedy trial.47
An accused cannot generally take advantage of a delay in
being brought to trial where he was responsible for the delay
by either action or inaction.48 Thus, in State v. Jameson,49
where the delay in bringing the defendant to trial was due
to continuances by defense counsel, we held there could be
no violation of the right to a speedy trial under the Sixth
Amendment to the U.S. Constitution. We reasoned that “[i]t
would be a strange anomaly if a defendant could first ask for
a series of continuances and then be immune from prosecution
because he had not been granted a speedy trial. Even under
the most liberal view of the [S]ixth [A]mendment, that argu-
ment will not ‘hold water.’”50
As already discussed in depth, Hettle asked for an indefinite
continuance. And that indefinite continuance did not, as Hettle
hoped, magically disappear upon the State’s amendment add-
ing a misdemeanor charge to the information. Hettle gave the
district court no notice of his intention to end the continuance
by requesting a trial. To the contrary, Hettle waited silently
until the eve of the scheduled trial to voice any concern over
the delay. We find no error in the district court’s denial of
the motion for discharge under the constitutional right to a
speedy trial.
due proCeSS
[23] Finally, Hettle argues that the district court erred in
denying his motion for discharge under his Fifth Amendment
right to due process. The Fifth Amendment has only a “lim-
ited role to play in protecting against oppressive delay” in the
criminal context.51 It is the measure against which prearrest or
47 State v. Andersen, 232 Neb. 187, 440 N.W.2d 203 (1989).
48 State v. Fatica, supra note 6.
49 State v. Jameson, 224 Neb. 38, 395 N.W.2d 744 (1986).
50 Id. at 43, 395 N.W.2d at 747.
51 United States v. Lovasco, 431 U.S. 783, 789, 97 S. Ct. 2044, 52 L. Ed. 2d
752 (1977).

STATE v. HETTLE 	305
Cite as 288 Neb. 288
indictment delay is scrutinized.52 We can find no case in which
the Fifth Amendment is applied to a claim for delay in bringing
the accused to trial after arrest or indictment.
Regardless, the due process claimant’s burden is a “heavy”
one, requiring a showing of both substantial actual prejudice
resulting from the delay and bad faith on the part of the gov-
ernment.53 We agree with the district court that Hettle failed
to establish a violation of his Fifth Amendment right against
oppressive delay.
CONCLUSION
We affirm the decision of the district court. In light of
Hettle’s statutory waiver under § 29-1207(4)(b), it is not nec-
essary to calculate the amount of time remaining to bring him
to trial under § 29-1207.54 Once the district court reacquires
jurisdiction over the cause, it is directed to set the matter
for trial.
affirMed.
52 See, United States v. Lovasco, supra note 51; United States v. Marion,
404 U.S. 307, 92 S. Ct. 455, 30 L. Ed. 2d 468 (1971); U.S. v. Ross, 703
F.3d 856 (6th Cir. 2012); U.S. v. Colombo, 852 F.2d 19 (1st Cir. 1988);
State v. Huebner, 245 Neb. 341, 513 N.W.2d 284 (1994), abrogated on
other grounds, State v. Morris, 251 Neb. 23, 554 N.W.2d 627 (1996);
People v. Gay, 2011 IL App (4th) 100009, 960 N.E.2d 1272, 356 Ill. Dec.
149 (2011); Haire v. State, 749 So. 2d 1130 (Miss. App. 1999); People v.
Guzman, 163 Misc. 2d 237, 620 N.Y.S.2d 227 (1994); State v. Jessie, 225
W. Va. 21, 689 S.E.2d 21 (2009).
53 United States v. Capone, 683 F.2d 582, 589 (1st Cir. 1982). See, also, e.g.,
U.S. v. Jackson, 446 F.3d 847 (8th Cir. 2006).
54 See, State v. Vela-Montes, 287 Neb. 679, 844 N.W.2d 286 (2014); State v.
Mortensen, supra note 1.