# State v. Alvarez

> Nebraska Supreme Court · November 24, 1972 · 189 Neb. 281

URL: https://www.frixlaw.com/law-library/cases/9708069

## Case

- **Full name:** State of Nebraska, Appellee, v. Alvaro Alvarez, Appellant
- **Court:** Nebraska Supreme Court
- **Decided:** November 24, 1972
- **Citations:** 189 Neb. 281; 202 N.W.2d 604; 1972 Neb. LEXIS 706
- **Precedential status:** Published
- **Opinion:** Dissent by Boslaugh
- **Judges:** White, Spencer, Boslaugh, Smith, McCown, Wton, Clinton
- **Cited by:** 45 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9708069

## Opinion text

Boslaugh, J.,
dissenting.
I agree with Judge McCown that the record in this case does not support the trial court’s finding of good cause for the delay in bringing the defendant to trial.
The defendant’s statutory right to be discharged if not tried within 6 months from the time the information was filed is separate from and in addition to his constitutional right to a speedy public trial. These rights *296 in fact are quite different and exist independently of each other.
A determinaton as to whether the constitutional right has been violated involves the balancing of a number of considerations. Among these are the extent of the delay, the reason for the delay, the prejudice if any to the defendant, and whether a speedy trial was requested. The essential factors are discussed in Barker v. Wingo, 407 U. S. 514 , 92 S. Ct. 2182 , 33 L. Ed. 2d 101.
The statutory right to discharge under section 29-1207, R. S. Supp., 1971, depends upon the expiration of the 6-month period plus any time excluded as provided in the statute. In this respect the operation of the statute is similar to a statute of limitations. Unlike the constitutional right, there may be no balancing of considerations involved. If there are m periods of time to be excluded, the operation of the statute is automatic. A determination as to whether certain periods of time should: be excluded may involve the exercise of judicial discretion.
In addition to the rule of practice “recommended” in the majority opinion, I would suggest that at any hearing on a motion for discharge under section 29-1208, R. S. Supp., 1971, the trial court should make specific findings on the record as to the reasons for and length in days of any period of delay which is to be excluded in computing the statutory time for trial.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9708069. Public record. Not legal advice.