Friday, January 20, 2006

Caution for lawyers' (and judges') counting deadlines: a month is not thirty days: Nebraska Supreme Court (CJ Hendry) rules that Court of Appeals improperly equated the speedy trial law's 6 month deadline with the Detainer law (IAD's) 180 day deadline (Follow up post)State v Rieger January 20, 2006. No. S-03-670. The Defendant appealed the lower court's ruling that did not find ineffective trial counsel (cf Strickland v Washington) by failing to win a dismissal of his robbery charges under the 180 day rule of the Interstate Agreement on Detainers. The IAD is in Chapter 29, Section 759 of the Nebraska Revised StatutesNebraska IAD. The court of appeals ruled that using the Nebraska State 6 month rule and adding additional time for motions the Defendant did come to trial in time, even though defense counsel failed to offer evidence of when Nebraska had received his disposition of detainers demand. The Nebraska Supreme Court summarized the detainer issue:
Counting forward 180 days from July 29, 1996, the date the State received Rieger's request for disposition, produces an initial trial date of January 25,1997. Counting forward 6 months from July 30, 1996, and backing up 1 day,pursuant to the 6-month speedy trial rule, produces an initial trial date ofJanuary 29, 1997. This 4-day difference in initial trial dates is crucial in determining whether Rieger was timely tried. As noted, the Court of Appeals relied on article VI of the Agreement to conclude that Nebraska's 6-month speedy trial rule should be applied to determine the expiration of the 180-day time limitation for trial. Thus, the issue presented is whether the language of the Agreement supports that interpretation
. The Nebraska Supreme Court finds that treating 6 months as equal to 180 days results in a discrepancy in the time limit defendant had to come to trial. The court should not have substituted the state 6 month time for the IAD 180 days
Although article VI(a)allows the court with jurisdiction to determine whether the 180-day time period in article III has been tolled, it does not authorize a court to alter the time period from days to months. The plain language of article III(a) requires the receiving state to bring a prisoner to trial within 180 days of receiving the prisoner's proper request for final disposition. In contrast, § 29-1207 requires the State to bring a defendant to trial within 6 months. Compare State v. Jones, 208 Neb. 641, 305 N.W.2d 355 (1981) (rejecting as contrary to plain language of § 29-1207 defendant's contention that Nebraska's 6-month speedy trial rule should be calculated by counting forward 180 days plus any excludable days).
Therefore counsel's ineffective error in fighting the detainer issue resulted in Strickland prejudice
The failure of (defense counsel) to create a proper record for appeal from the denial of Rieger's motion to discharge resulted in the Court of Appeals' failure to consider when the time limitation for trial expired. As discussed, a calculation based on 180 days, as extended by the Court of Appeals' excludable time periods, results in a trial deadline of August 4, 1997, and Rieger's trial did not begin until August 18. Under article V(c), Rieger was entitled to an order dismissing the action with prejudice. Given our holding that Rieger's trial was not timely, we conclude that if (def counsel) had shown the 180-day time limitation was triggered, a reasonable probability existed that an appeal or petition for further review from the denial of Rieger's motion to discharge would have resulted in a reversal.

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