State v. Jennings , 308 Neb. 835 ( 2021 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
04/29/2021 09:08 AM CDT
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STATE v. JENNINGS
Cite as 308 Neb. 835State of Nebraska, appellee, v.
Douglas P. Jennings, appellant.
___ N.W.2d ___
Filed April 2, 2021. No. S-20-324.
1. Judgments: Speedy Trial: Appeal and Error. Generally, 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. Appeal and Error. The function of assignments of error is to set out
the issues presented on appeal, to advise the appellee of the question
submitted for determination so the appellee knows what contentions
must be met, and to advise the appellate court of the issues submitted
for decision.
3. ____. A generalized and vague assignment of error that does not advise
an appellate court of the issue submitted for decision will not be
considered.
4. Courts: Judgments: Appeal and Error. Both the district court and a
higher appellate court generally review appeals from the county court
for error appearing on the record. Under that standard, an appellate
court’s inquiry is whether the trial court’s decision conformed to the law,
was supported by competent evidence, and was neither arbitrary, capri-
cious, nor unreasonable.
5. ____: ____: ____. In appeals from the district court sitting as an
appellate court, the immediate question is whether the district court
erred in its appellate review of the county court’s decision, but review
of that question necessarily involves considering the decision of the
county court.
6. Speedy Trial. To calculate the time for statutory speedy trial purposes,
a court must exclude the day the complaint was filed, count forward 6
months, back up 1 day, and then add any time excluded under Neb. Rev.
Stat. § 29-1207(4) (Reissue 2016) to determine the last day the defend­
ant can be tried.
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Cite as 308 Neb. 8357. Speedy Trial: Proof. When calculating the time for speedy trial pur-
poses, the State bears the burden to show, by a preponderance of the
evidence, the applicability of one or more of the excluded time periods
under Neb. Rev. Stat. § 29-1207(4) (Reissue 2016).
8. Speedy Trial: Notice. Generally, a criminal defendant must be properly
notified of the need to appear in court on a given date and time before
failure to so appear can initiate a period of excludable time under Neb.
Rev. Stat. § 29-1207(4)(d) (Reissue 2016).
9. Speedy Trial: Warrants: Service of Process: Proof. The pendency
of a warrant alone may result in excludable time under Neb. Rev. Stat.
§ 29-1207(4)(d) (Reissue 2016) if the State can prove that diligent
efforts to secure the defendant’s presence by the service of the arrest
warrant have been tried and failed.
Appeal from the District Court for Douglas County, Gary
B. Randall, Judge, on appeal thereto from the County Court
for Douglas County, Darryl R. Lowe, Judge. Judgment of
District Court reversed and remanded with directions.
Thomas C. Riley, Douglas County Public Defender, and
Mary M. Dvorak for appellant.
Douglas J. Peterson, Attorney General, and Stacy M. Foust
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Stacy, J.
In this appeal from the district court sitting as an appel-
late court, Douglas P. Jennings assigns error to the denial of
his motion for absolute discharge. Jennings argues he was
not tried within the statutory 6-month period under Neb. Rev.
Stat. § 29-1207 (Reissue 2016), and he further argues the
State failed to prove the delay was the result of any properly
excluded period. The State’s briefing offers no argument on
the merits of Jennings’ speedy trial claim, and instead, it con-
tends only that Jennings’ sole assignment of error is unreview-
able. Because we find Jennings’ assignment of error is both
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STATE v. JENNINGS
Cite as 308 Neb. 835reviewable and meritorious, we reverse the judgment of the
district court and remand the cause with directions.
BACKGROUND
On August 17, 2018, the State filed a complaint in the
county court for Douglas County, charging Jennings with the
Class I misdemeanor of stalking, in violation of Neb. Rev.
Stat. § 28-311.04 (Cum. Supp. 2020). The alleged victim was
Jennings’ former girlfriend. Three days later, on August 20, the
court issued a warrant for Jennings’ arrest.
More than 9 months later, on May 29, 2019, Jennings
was arrested at his home in Omaha, Nebraska, as part of a
misdemeanor warrant sweep conducted by the Omaha Police
Department. At his arraignment the next day, Jennings entered
a plea of not guilty, and the case was placed on the jury
docket. Jennings was released on bond and ordered to appear
on July 12 for a pretrial conference. Jennings appeared with
counsel for the pretrial conference and moved to continue
the matter. Thereafter, trial was continued several times on
Jennings’ motions.
On August 30, 2019, Jennings filed a motion for absolute
discharge on constitutional and statutory speedy trial grounds.
His motion generally alleged the State’s complaint was filed
August 17, 2018, and by the time Jennings was arrested on the
warrant, more than 9 months later, the 6-month speedy trial
period under § 29-1207 had expired.
At the evidentiary hearing on Jennings’ motion, the State
argued the period of delay between the filing of the com-
plaint and Jennings’ arrest on the warrant was due solely to
“the absence or the unavailability of the defendant” and thus
was excludable under § 29-1207(4)(d). In opening remarks,
the State advised it would call the officer who transported
Jennings to jail to testify about “statements that [Jennings]
made that would indicate that he was aware of the warrant
and, in fact, had moved out of state in order . . . to avoid
that warrant.”
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STATE v. JENNINGS
Cite as 308 Neb. 835The State called Sgt. Brent Kendall, who testified that
while he was transporting Jennings to jail on May 29, 2019,
Jennings made several statements. First, Jennings told Kendall
that sometime in January 2019, a friend told him “he might be
on [a] warrant list,” so Jennings “checked for several weeks”
but “wasn’t sure if that was [a protection order] or if that was
a warrant.” Jennings said he wanted more information, so he
emailed his former girlfriend, but Jennings did not “get into
the details of the content of the email.” Jennings did state,
however, that he thought his former girlfriend “‘dropped’” the
matter and it was “done.”
Jennings also told Kendall that he traveled to Las Vegas,
Nevada, “in the summer of 2018” and that when he returned
to Omaha, he “found a note that he believed was from a
process server.” There was no evidence adduced about how
long Jennings was in Las Vegas or about the content of the
note Jennings found when he returned. On cross-examination,
Kendall admitted that Jennings’ statements about finding a note
from a process server suggested “there’s some civil piece of
paperwork that . . . he needs to be served with.”
Finally, Jennings told Kendall “he had spent approximately
10 months in Denver, Colorado,” and was back in Omaha
because “he had a storage unit with a classic car and some other
property that he needed to tend to.” On cross-­examination,
Kendall admitted he did not know when Jennings left for
Colorado or whether he made trips back and forth between
Denver and Omaha. Kendall also admitted that until the war-
rant sweep on May 29, 2019, he had not personally attempted
to serve the warrant on Jennings. The State offered no evidence
of prior attempts to serve Jennings’ warrant.
The county court overruled Jennings’ motion for dis-
charge, reasoning:
[T]he statements from the defendant’s mouth gives the
trier of fact some pause. . . . [A]ccording to the officer
[Jennings] spent 10 months in Denver. Whether he’s try-
ing to avoid it or not, it does show he was unavailable.
Whether or not he believed it was a process server or
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Cite as 308 Neb. 835he thought there was someone serving a warrant for a
protection order or some other civil lawsuit rather than
a criminal lawsuit, despite that, he was unavailable for,
allegedly, at least a nine-month period between August
of 2018 and May 2019. So, the [court] is going to deny
your motion.
Jennings timely appealed the denial of his motion for abso-
lute discharge, assigning the county court erred in finding the
State had met its burden of proving an excludable period under
§ 29-1207(4). The district court affirmed.
Jennings now appeals from the district court’s judgment. We
moved the case to our docket on our own motion.
ASSIGNMENT OF ERROR
Because the phrasing of Jennings’ only assignment of error
is an issue on appeal, we quote the assignment in full: “The
county court erred in interpreting and applying the speedy
trial statute, Neb. Rev. Stat. § 29-1207, in denying [Jennings’]
motion to discharge, where the [S]tate failed to show that
Jennings had notice of the pending charge or arrest warrant.”
STANDARD OF REVIEW
[1] Generally, a trial court’s determination as to whether
charges should be dismissed on speedy trial grounds is a fac-
tual question which will be affirmed on appeal unless clearly
erroneous. 1
ANALYSIS
The State’s appellate briefing does not address the merits
of the lower courts’ speedy trial analysis or rulings. Instead,
the State argues that Jennings’ sole assignment of error is
unreviewable under our holding in State v. McGinn, 2 because
the assignment refers to the county court’s decision rather than
1
State v. Chapman, 307 Neb. 443, 949 N.W.2d 490 (2020); State v. Liming,
306 Neb. 475, 945 N.W.2d 882 (2020).
2
State v. McGinn, 303 Neb. 224, 928 N.W.2d 391 (2019), modified on
denial of rehearing 303 Neb. 931, 932 N.W.2d 83.
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Cite as 308 Neb. 835the district court’s judgment. We address the State’s interpreta-
tion of McGinn as a threshold matter.
State v. McGinn
In McGinn, the defendant appealed his county court convic-
tion for driving under the influence of alcohol. The district
court, sitting as an intermediate appellate court, found the
county court erred in admitting certain breath test results into
evidence. But the district court ultimately affirmed the convic-
tion, finding it was supported by other evidence in the record. 3
On further appeal, the defendant assigned it was error for the
district court to affirm the county court’s conviction after find-
ing the breath test was inadmissible. In response, the State
argued the county court had correctly admitted the breath test.
We understood this as an effort by the State to challenge the
merits of the district court’s determination that the county court
erred in admitting the breath test. 4 And since the State had not
cross-appealed on that issue, we concluded it had not preserved
the alleged error for appellate review, reasoning:
[T]he district court determined that the breath test was
inadmissible due to a violation of § 60-6,199 and . . . the
State has not cross-appealed and has not assigned as error
that determination. At oral argument, the State contended
that [it] did not need to appeal the district court’s admissi-
bility determination, because the district court ultimately
affirmed McGinn’s conviction on other grounds.
Under Neb. Rev. Stat. § 25-2733(3) (Reissue 2016),
the judgment of the district court vacates the judgment in
the county court and thus only the district court’s judg-
ment is reviewable by this court. Our holding in State v.
Thalken[, 299 Neb. 857, 911 N.W.2d 562 (2018),] articu-
lated the State’s right to appeal a decision of the district
court sitting as an intermediate court of appeals. As a
result, the State has not preserved the purported error
3
Id.4
See id.- 841 -
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Cite as 308 Neb. 835committed by the district court. As we have previously
stated, an appellate court does not consider errors which
are argued but not assigned.
Additionally, we have held that an appellee’s argument
that a lower court’s decision should be upheld on grounds
specifically rejected below constitutes a request for affirm­
ative relief, and the appellee must cross-appeal in order
for that argument to be considered. Thus, the sole issue
on appeal is whether the district court erred in affirming
the county court’s conviction after determining the county
court erred in admitting the breath test evidence. 5
Post-McGinn, the State has regularly relied on language
from that opinion to argue, in appeals from the district court
sitting as an appellate court, that assignments of error which
reference only the county court’s ruling are unreviewable. 6
Initially, the State’s argument was viewed favorably in an
unpublished opinion of the Nebraska Court of Appeals. 7 But
the State’s interpretation of McGinn was expressly rejected
by the Court of Appeals in the published opinion of State v.
Keenan 8 and in another unpublished opinion. 9 We also reject
the State’s interpretation of McGinn.
The State contends that McGinn precludes appellate review
whenever an assignment of error focuses on the county
court’s ruling rather than the district court’s ruling. It supports
5
McGinn, supra note 2, 303 Neb. at 231-32, 928 N.W.2d at 396.
6
See, e.g., State v. Keenan, 28 Neb. App. 575, 946 N.W.2d 689 (2020),
modified on denial of rehearing 28 Neb. App. 697, 946 N.W.2d 693; State
v. Lonowski, No. A-19-1046, 2020 WL 4459346 (Neb. App. Aug. 4, 2020)
(selected for posting to court website); State v. Krieger, No. A-19-982,
2020 WL 4346738 (July 20, 2020) (selected for posting to court website);
State v. White, No. A-19-1061, 2020 WL 3054807 (Neb. App. June 9, 2020)
(selected for posting to court website); State v. Maciel, No. A-19-549,
2020 WL 549059 (Neb. App. Feb. 4, 2020) (selected for posting to
court website).
7
See Maciel, supra note 6.
8
Keenan, supra note 6.
9
See Krieger, supra note 6.
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Cite as 308 Neb. 835this contention by pointing to language in McGinn stating that
“the judgment of the district court vacates the judgment in
the county court and thus only the district court’s judgment is
reviewable by this court.” 10 The State appears to assume that
we did not review its argument in McGinn because of the way
the argument had been framed. But it was not imprecision in
framing the argument that precluded appellate review; it was
the State’s failure to cross-appeal.
In McGinn, the State was attempting to argue that the district
court’s appellate reasoning on an evidentiary issue was errone-
ous and that the county court’s admission of the evidence had
been correct. But the State had not cross-appealed to preserve
that purported error by the district court, so we were unable
to review it. And when the State suggested it was not neces-
sary to cross-appeal because it was merely seeking affirmance
on a different ground, we rejected that suggestion, pointing
to the rule that when an appellee argues that a lower court’s
decision should be upheld on grounds specifically rejected
below, it amounts to a request for affirmative relief, and the
appellee must cross-appeal in order for that argument to be
considered. 11 In other words, McGinn teaches that if an appel-
lee wants the appellate court to review an allegedly erroneous
determination made by the district court sitting as an appellate
court, it should cross-appeal to preserve the issue, rather than
merely arguing in its brief that the county court was correct in
the first instance.
The observation in McGinn that “the judgment of the dis-
trict court vacates the judgment in the county court and thus
10
McGinn, supra note 2, 303 Neb. at 231, 928 N.W.2d at 396. See, also,
Neb. Rev. Stat. § 25-2733(3) (Reissue 2016).
11
McGinn, supra note 2. Accord, Weber v. Gas ’N Shop, 278 Neb. 49, 767
N.W.2d 746 (2009); Pennfield Oil Co. v. Winstrom, 272 Neb. 219, 720
N.W.2d 886 (2006); New Tek Mfg. v. Beehner, 270 Neb. 264, 702 N.W.2d
336 (2005); Wasikowski v. Nebraska Quality Jobs Bd., 264 Neb. 403, 648
N.W.2d 756 (2002); McDonald v. DeCamp Legal Servs., 260 Neb. 729,
619 N.W.2d 583 (2000).
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Cite as 308 Neb. 835only the district court’s judgment is reviewable by this court”
must be understood in the procedural context of that case. 12
The State has taken this language out of context and fash-
ioned it into a grammatical litmus test that would preclude
appellate review altogether if an assignment of error is impre-
cisely framed.
We encourage precision when framing assignments of error,
but the applicable legal standard does not require perfection.
Instead, Neb. Rev. Stat. § 25-1919 (Reissue 2016) provides:
The brief of appellant shall set out particularly each error
asserted and intended to be urged for the reversal, vaca-
tion, or modification of the judgment, decree, or final
order alleged to be erroneous, but no petition in error or
other assignment of errors shall be required beyond or in
addition to such requirement.
And the Nebraska Court Rules of Appellate Practice require a
“separate concise statement of each error a party contends was
made by the trial court, together with the issues pertaining to
the assignments of error.” 13
[2,3] In applying these standards, we have explained that
the function of assignments of error is to set out the issues
presented on appeal, to advise the appellee of the question
submitted for determination so the appellee knows what con-
tentions must be met, and to advise the appellate court of the
issues submitted for decision. 14 While a generalized and vague
assignment of error that does not advise an appellate court of
the issue submitted for decision will not be considered, 15 the
State does not suggest that Jennings’ assignment is too vague
or generalized to advise of the issue submitted for determina-
tion. Instead, the State argues only that McGinn prevents us
12
See McGinn, supra note 2, 303 Neb. at 231, 928 N.W.2d at 396.
13
Neb. Ct. R. App. P. § 2-109(D)(1)(e) (rev. 2014).
14
See, State v. Huffman, 222 Neb. 512, 385 N.W.2d 85 (1986), overruled on
other grounds, State v. Vann, 306 Neb. 91, 944 N.W.2d 503 (2020); Cook
v. Lowe, 180 Neb. 39, 141 N.W.2d 430 (1966).
15
State v. Filholm, 287 Neb. 763, 848 N.W.2d 571 (2014).
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Cite as 308 Neb. 835from reviewing an assignment that references just the county
court’s decision.
We have explained why the State’s interpretation of McGinn
is incorrect, but for the sake of completeness, we also correct
the State’s suggestion that an appellate court should not con-
sider the county court’s decision when reviewing appeals from
the district court sitting as an intermediate appellate court.
Given the applicable standard of appellate review, the State’s
suggestion is both imprecise and impractical.
[4,5] Both the district court and a higher appellate court gen-
erally review appeals from the county court for error appear-
ing on the record. 16 Under that standard, an appellate court’s
inquiry is whether the trial court’s decision conformed to the
law, was supported by competent evidence, and was neither
arbitrary, capricious, nor unreasonable. 17 And since we have
characterized a county court’s determination of whether a com-
plaint should be dismissed on speedy trial grounds as a factual
question, such a decision will be affirmed by the appellate
court unless clearly erroneous. 18 So, in appeals from the district
court sitting as an appellate court, the immediate question is
whether the district court erred in its appellate review of the
county court’s decision, but review of that question necessarily
involves considering the decision of the county court.
Here, Jennings has assigned error to the county court’s
denial of his motion for absolute discharge, contending the
State failed to prove he had notice of the pending charge or
the arrest warrant. While it would have been more precise for
Jennings to assign error to the district court’s affirmance of
the decision of the county court to deny absolute discharge,
the fact remains that our standard of appellate review, like the
district court’s standard of review, requires that we consider
16
McGinn, supra note 2.
17
Id.18
See, Chapman, supra note 1; State v. Richter, 240 Neb. 223, 481 N.W.2d
200 (1992).
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Cite as 308 Neb. 835whether the county court’s speedy trial decision was clearly
erroneous. 19
In summary, then, we reject the State’s contention that we
cannot review Jennings’ assignment of error under McGinn.
And we determine that Jennings’ assignment of error, while
imprecise, is sufficient to advise this court of the issues sub-
mitted for decision and to let the State know what conten-
tions must be met. Nothing about the way Jennings has either
phrased or argued his assignment of error precludes appel-
late review.
Having concluded that Jennings’ assignment of error is
reviewable, we turn next to its merits.
Right to Absolute Discharge
At oral argument before this court, the State conceded that
if we reach the merits of Jennings’ assignment of error, the
district court’s judgment should be reversed because the State
failed to meet its burden of proof. As we explain, we agree
with the State’s candid assessment.
In Nebraska, a criminal defendant’s statutory speedy trial
rights are governed by § 29-1207 and Neb. Rev. Stat. § 29-1208(Reissue 2016). 20 Summarized, § 29-1207 requires that every
person “indicted or informed against for any offense shall be
brought to trial within six months” 21 and generally provides
that the “six-month period shall commence to run from the
date the indictment is returned or the information filed.” 22
The statute contains an exception for misdemeanor offenses
“involving intimate partners . . . in which case the six-month
period shall commence from the date the defendant is arrested
on a complaint filed as part of a warrant for arrest.” 23 The
19
See id.
20
See Chapman, supra note 1.
21
§ 29-1207(1).
22
§ 29-1207(2).
23
Id.
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Cite as 308 Neb. 835State did not rely on this exception in response to Jennings’
motion, and we therefore express no opinion on whether it
could apply to a stalking charge. 24 We instead analyze Jennings’
motion for absolute discharge assuming, as did the court and
parties below, that the 6-month speedy trial period commenced
on the date the complaint was filed in county court. 25
[6,7] To calculate the time for statutory speedy trial pur-
poses, “a court must exclude the day the complaint was filed,
count forward 6 months, back up 1 day, and then add any time
excluded under § 29-1207(4) to determine the last day the
defendant can be tried.” 26 The State bears the burden to show,
by a preponderance of the evidence, the applicability of one
or more of the excluded time periods under § 29-1207(4). 27 If
a defendant is “not brought to trial before the running of the
time for trial as provided for in section 29-1207, as extended
by excluded periods, he or she shall be entitled to his or her
absolute discharge from the offense charged.” 28
Before the county court, the State opposed Jennings’ motion
for absolute discharge on just one ground: that Jennings
was absent or unavailable during the entire time the arrest
warrant was pending, making that time excludable under
§ 29-1207(4)(d). We therefore confine our speedy trial analysis
under § 29-1207(4) to this narrow issue.
Section 29-1207(4)(d) excludes from the speedy trial cal-
culation “[t]he period of delay resulting from the absence
24
See, e.g., State v. Lebeau, 280 Neb. 238, 244-45, 784 N.W.2d 921,
927 (2010) (holding provision in § 29-1207(2) for “a misdemeanor
offense involving intimate partners” does not encompass any and all
misdemeanors involving an intimate partner but applies “only to those
misdemeanor offenses in which the involvement of an ‘intimate partner’ is
an element of the offense”).
25
See, e.g., Chapman, supra note 1 (noting § 29-1207(2) refers to infor­
mations and indictments but has consistently been applied to prosecutions
commenced by filing complaint in county court).
26
Chapman, supra note 1, 307 Neb. at 448, 949 N.W.2d at 493-94.
27
See id.
28
§ 29-1208.
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Cite as 308 Neb. 835or unavailability of the defendant.” Based on the evidence
adduced at the hearing on Jennings’ motion, the county court
made a finding that Jennings was “unavailable for . . . at least
a nine-month period between August of 2018 and May 2019,”
and it excluded that period under § 29-1207(4)(d). To deter-
mine whether the county court’s finding in this regard was
clearly erroneous, and therefore, whether the district court’s
affirmance was erroneous, we review our cases addressing the
circumstances under which a pending arrest warrant can result
in excluded time under § 29-1207(4)(d).
First, we pause to recite the general rule that when a crimi-
nal defendant is given notice to appear for trial and fails to do
so, he or she is considered absent or unavailable for purposes
of § 29-1207(4)(d). 29 In such a case, we have said the time
from the failure to appear until the “‘next reasonably avail-
able trial date’” after the defendant reappears is attributable to
the defendant. 30 But here, the State does not contend Jennings
was given notice to appear in court on the stalking charge and
failed to do so. Instead, the State relies exclusively on the
pendency of an unserved arrest warrant to argue that Jennings
was absent or unavailable under § 29-1207(4)(d). We have
considered similar arguments in two prior cases which we
find instructive.
In State v. Richter, 31 the defendant was charged in county
court with driving while intoxicated. The State attempted to
serve the complaint by citation, 32 but the record contained
no return of service. After the defendant failed to appear as
directed in the citation, a warrant was issued for his arrest.
When the defendant was arrested on the warrant 603 days
later, he moved for absolute discharge on speedy trial grounds.
The county court denied the motion for absolute discharge,
29
See, State v. Blocher, 307 Neb. 874, 951 N.W.2d 499 (2020); State v.
Petty, 269 Neb. 205, 691 N.W.2d 101 (2005).
30
Blocher, supra note 29, 307 Neb. at 878, 951 N.W.2d at 502.
31
Richter, supra note 18.
32
See, e.g., Neb. Rev. Stat. § 29-425 (Reissue 2016).
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Cite as 308 Neb. 835finding the defendant was absent and unavailable during the
pendency of the arrest warrant under § 29-1207(4)(d). The
district court affirmed.
[8] On further appeal, we reversed, citing the general rule
that “a criminal defendant must be properly notified of the
need to appear in court on a given date and time before failure
to so appear can initiate a period of excludable time [under
§ 29-1207(4)(d)].” 33 We likewise rejected the State’s argument
that the pendency of the arrest warrant resulted in excludable
time, reasoning that “to allow [the speedy trial] statute to be
tolled with the mere issuance of a warrant without service
would allow the State to schedule hearings without notifying
the defendant and then to switch off the speedy trial clock by
applying for a warrant.” 34
But as relevant here, Richter also recognized there may
be circumstances where, despite a defendant’s lack of notice,
a pending arrest warrant can result in excludable time under
§ 29-1207(4)(d), if the State proves that “diligent efforts to
secure [the defendant’s] presence by the service of an arrest
warrant have been tried and failed.” 35 Because the State in
Richter had not shown diligent efforts to secure the defend­
ant’s appearance, there was insufficient evidence to show the
defend­ant was unavailable under § 29-1207(4)(d) while the
warrant was outstanding.
In State v. Chapman, 36 we again considered whether the
State had met its burden of proving the time that an arrest
warrant was pending was excludable under § 29-1207(4)(d).
The defendant in Chapman was charged in county court with
theft by unlawful taking, and when he failed to appear for his
scheduled arraignment, a warrant was issued. The defendant
was arrested on the warrant about 2 years later, after which he
moved for absolute discharge on speedy trial grounds.
33
Richter, supra note 18, 240 Neb. at 228, 481 N.W.2d at 204.
34
Id. at 230, 481 N.W.2d at 206.
35
Id.36
Chapman, supra note 1.
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Cite as 308 Neb. 835At the hearing on the defendant’s motion, the State offered
a letter addressed to the defendant directing him to appear in
court on the day of his scheduled arraignment, but it offered
no evidence the letter had been received. The State also
offered the arrest warrant and subsequent orders extending that
warrant, but it presented no evidence regarding attempts to
execute the warrant. The county court denied discharge, find-
ing the entire period during which the warrant was pending
was excludable under § 29-1207(4)(d). On appeal, the district
court affirmed. 37
[9] We reversed on further appeal, finding the State had not
met its burden to prove excludable time under § 29-1207(4)(d).
We observed that both the county and district court appeared
to assume that any time an arrest warrant is issued for failure
to appear, the defendant is considered absent or unavailable
under § 29-1207(4)(d) during the pendency of the warrant. But
we explained that Richter does not support such a conclusion.
Instead, Richter recited the general rule that no excluded time
arises under § 29-1207(4)(d) when a defendant fails to appear
at a court proceeding of which he or she was not provided
notice. And even though Richter recognized a possible excep-
tion to the general rule, under which “the pendency of a war-
rant alone may result in excluded time if the State can prove
that ‘diligent efforts to secure [the defendant’s] presence by
the service of an arrest warrant have been tried and failed,’” 38
the State in Chapman admitted it had not offered evidence of
diligent efforts.
In the instant appeal, the State’s evidence fell short under
both Richter and Chapman. The State adduced no evidence
that Jennings had notice of any order to appear on the stalk-
ing charge, and to the extent the State wanted to rely on the
possible exception for pending arrest warrants discussed in
Richter and Chapman, it adduced no evidence of any efforts
to serve the warrant on Jennings before May 29, 2019. This
37
Id.
38
Id. at 449, 949 N.W.2d at 494, quoting Richter, supra note 18.
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Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
STATE v. JENNINGS
Cite as 308 Neb. 835case, therefore, does not afford an opportunity to fully explore
what sort of showing may satisfy diligent efforts under Richter
and Chapman.
On this record, the State did not carry its burden to prove
any excluded time based on Jennings’ absence or unavailabil-
ity under § 29-1207(4)(d). As such, the county court clearly
erred in finding that Jennings was unavailable during the
pendency of the arrest warrant and excluding that time under
§ 29-1207(4)(d), and the district court erred in affirming the
county court’s order.
Jennings was entitled to absolute discharge under § 29-1208
because he was not tried within 6 months of the complaint
being filed, and the State failed to meet its burden of proving
any excludable time.
CONCLUSION
For the foregoing reasons, we reverse the judgment of the
district court and direct that court, on remand, to reverse the
order of the county court and remand the cause with directions
to grant Jennings’ motion for absolute discharge.
Reversed and remanded with directions.