State v. Kinstler
State v. Kinstler
Opinion of the Court
The appellant, Kenneth Kinstler, appeals from a conviction following a bench trial on November 28, 1979, he was sentenced to a term of 2 years’ probation, of police reports in lieu of testimony, the appellant was found guilty of kidnapping. On December 27, 1979, he was sentenced to a term of 2 years’ probation. Appellant maintains that the trial court erred in overruling appellant’s earlier motion for discharge based upon the State’s failure to grant him a trial
All of the facts in this case are without dispute. They point up, however, what it was that concerned this court when we decided the case of State v. Shaw, 202 Neb. 766, 277 N.W.2d 106 (1979).
The undisputed facts disclose that on March 7, 1973, a female student at the University of Nebraska at Omaha, having finished her class at approximately 6:40 p.m. of that day, was walking to her car in the student parking lot behind the administration building. She opened the car door, got in, and when attempting to close the door, was prevented from doing so by the appellant who told her that he had just committed a robbery and needed to meet a friend in Waterloo, Nebraska. He forced himself into the car by displaying a small gun and threatened her that if she caused a fuss she might get hurt. He forced her to drive to Waterloo where she was told to pull off the road beside the Elkhorn River where they waited for approximately an hour. At approximately .8:30 p.m., appellant tied her hands behind her back with a nylon stocking and tried to tie another around her mouth to gag her. At this time, appellant stated he needed a drink and took the student to a nearby bar where he threatened to do something to hurt her if she left the car when he went inside. When he left, the woman left the car and ran to a nearby home where police were called. Appellant was thereafter arrested and, after being advised of his rights and waiving them, admitted to the police the commission of the crime.
Appellant was charged on March 23, 1973, with kidnapping and the use of a firearm to which the ap
On April 30, 1979, Jack M. Cleavenger, then acting director of the Nebraska Department of Public
In May of 1979, the Nebraska Legislature, then being in session, repealed the then existing sexual sociopath statutes and enacted in their stead Neb. Rev. Stat. §§29-2911 to 2921 (Reissue 1979), relating to mentally disordered sex offenders. The act was passed with the emergency clause and became effective upon the Governor’s signature on May 23, 1979. The newly enacted statutes acknowledged our statements in Shaw and specifically provided that, “All persons now committed under Chapter 29, article 29, as either a sexual psychopath or a sexual sociopath, shall forthwith be returned to the district court which committed them for review and disposition consistent with the terms of sections 29-2911 to 29-2921.” §29-2921.
Notwithstanding all of those facts, it was not until October 25, 1979, that an order was entered directing the Douglas County sheriff to return the appellant to Omaha for an arraignment which was held on October 30, 1979. Appellant was confined at the Lincoln Regional Center during all of this time. On November 27, 1979, appellant filed a motion for discharge for lack of speedy trial, which was denied by the trial court immediately prior to appellant’s trial and conviction of kidnapping which occurred on November 28, 1979.
Our disposition of this matter is controlled entirely by the mandate of the Nebraska Legislature, found in Chapter 29, article 12 of the Revised Statutes of Nebraska. These sections simply prescribe the details
“(1) Every person indicted or informed against for any offense shall be brought to trial within six months, and such time shall be computed as provided in this section.
“(2) Such six-month period shall commence to run from the date the indictment is returned or the information filed. . . .
“(3) If such defendant is to be tried again following a mistrial, an order for a new trial, or an appeal or collateral attack, such period shall commence to run from the date of the mistrial, order granting a new trial, or the mandate on remand.” (Emphasis supplied.)
There then follows a list of time periods which are excluded in computing the time for trial. It may reasonably be argued that the exclusionary period set forth in § 29-1207(4) would justifiably have excused failing to try the appellant during the period between March 23, 1973, when the information was filed, and March 27, 1979, when this court filed its opinion in State v. Shaw, supra. For purposes of this appeal, however, we need not concern ourselves with that period of time. The record shows that appellant in this case was not brought to trial within 6 months of either the date of our decision in State v. Shaw or the enactment of the mentally disordered sex offenders act. There is, therefore, no point in time in this case from which one may begin computing time that will result in the appellant having been brought to trial within 6 months of that date.
In a series of decisions rendered by this court since the enactment of the speedy trial laws by the Leg
The State argues that the delay was not unreasonable and we should overlook the precise time, citing us to the case of Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972). Barker simply established an accused’s right to a speedy trial, recognizing that the Constitution prescribes no specific time which must be met to satisfy a speedy trial. There was, however, no statute involved in Barker as there is in the instant case and Barker is, therefore, of no help in our disposition of this matter.
There are no' specific findings made in this case which would satisfy the requirements of § 29-1207(4) (f) and, therefore, the provisions of Neb. Rev. Stat.
Reversed and remanded with directions.
Dissenting Opinion
dissenting.
Neb. Rev. Stat. §29-1207 (Reissue 1979) provides that “The period of delay resulting from other proceedings concerning the defendant,” shall be excluded in computing the time in which the defendant must be brought to trial. (Emphasis supplied.)
The time from April 17, 1973, when the defendant
The defendant has demonstrated, on several occasions, that he is indeed a dangerous person. It was at his request that all criminal proceedings were suspended indefinitely. It is a general principle that periods of delay occasioned by requests of a defendant should not work to the prejudice of the State. I would apply that principle in this case.
Reference
- Full Case Name
- State of Nebraska, Appellee, v. Kenneth Kinstler, Appellant
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- 93 cases
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- Published