Wednesday, April 20, 2005

Defendant's impatient lawyer loses speedy trial motion

State v. Reiger, 13 Neb. App. 444 Filed April 19, 2005. No. A-03-670. David W. Rieger, Jr., sought postconviction relief for alleged ineffective counsel’s failure to seek dismissal of certain criminal charges under the 180 days rule of the Interstate Agreement on Detainers (IAD 28 USC appendix) (codified at Neb. Rev. Stat. § 29-759 (Reissue 1995). Rieger claimed trial counsel had failed to offer evidence that would have shown the states violation of the 180 day rule. The court of appeals holds that a motion for withdrawal of counsel is a motion that tolls the running of the 180-day (6 month) speedy trial time( 29-1207) as well as the detainer compact law. New counsel filed a motion to dismiss the detainer 2 days early. Since a pending pretrial motion tolls both the 180 day speedy trial rules and the Interstate Detainer rules the premature motion actually worked to keep the expiring case open. Defendant claimed his attorney's premature filing of the motion to discharge by 2 days which extended the speedy trial clock, and ultimately of extending it to a date 1 day after the trial had begun was ineffective counsel? NO, because the Court cannot expect an attorney to anticipate every gray area of the law. Since the lawyer made a legal judgment in a gray area, the lawyer was not “Strickland” (Strickland v. Washington, 466 US 668 1984) ineffective. The following Timeline will help you understand the case: 7-7-95 defendant robs a store in omaha 7-10-95 douglas county charges defendant 5-31-96 Douglas County files detainer vs Defendant in Federal Pen. 7-23-96 defendant mails request for mandatory detainer disposition 7-29-96 Douglas County receives detainer demand {court holds receipt date triggers 180 days} 9-26-96 Douglas county district court information filed 10-1-96 defendant files plea in abatement 4-3-97 Court overruled plea in abatement 5-7-97 Defendant counsel files motion to withdraw du2 conflict of interest 5-12-97 douglas county amends information to add “habitual criminal” count {court notes no effect on speedy trial} 5-12-97 court allows withdrawal and anticipated appointment of new counsel trial set for 8-18-97 8-5-97 Def counsel files motion to dismiss detainer for 180 day violation 8-18-97 trial starts, convicted next day Be careful not to jump the gun for your clients, ironic most times lawyers get heat for filing documents late not too early!

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