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Nebraska Supreme Court Advance Sheets

310 Nebraska Reports

STATE v. ABERNATHY

Cite as 310 Neb. 880

State of Nebraska, appellee, 

v. Kyle S. Abernathy, 

appellant.

___ N.W.2d ___

Filed February 11, 2022. No. S-21-016.

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. Judgments: Jurisdiction: Appeal and Error. A jurisdictional issue that 

does not involve a factual dispute presents a question of law, which an 

appellate court independently decides.

3. Speedy Trial. The statutory right to a speedy trial is set forth in Neb. 

Rev. Stat. §§ 29-1207 and 29-1208 (Reissue 2016).

4. ____. To calculate the deadline for trial under the speedy trial statutes, a 

court must exclude the day the State filed the information, count forward 

6 months, back up 1 day, and then add any time excluded under Neb. 

Rev. Stat. § 29-1207(4) (Reissue 2016).

5. Constitutional Law: Speedy Trial. A pretrial order denying a motion 

for discharge on constitutional speedy trial grounds does not affect a 

substantial right in a special proceeding for purposes of Neb. Rev. Stat. 

§ 25-1902(1)(b) (Cum. Supp. 2020).

Appeal from the District Court for Sarpy County: Michael 

A. Smith, Judge. Affirmed in part, and in part dismissed.

April O’Loughlin, Assistant Sarpy County Public Defender, 

for appellant.

Douglas J. Peterson, Attorney General, and Stacy M. Foust 

for appellee.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

03/18/2022 01:09 AM CDT
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STATE v. ABERNATHY

Cite as 310 Neb. 880

Miller-Lerman, Cassel, Stacy, Funke, Papik, and 

Freudenberg, JJ., and Daugherty, District Judge.

Papik, J.

Kyle S. Abernathy appeals an order of the district court 

overruling his motion for absolute discharge, which asserted 

violations of his constitutional and statutory rights to a speedy 

trial. See, U.S. Const. amend VI; Neb. Const. art. I, § 11; Neb. 

Rev. Stat. §§ 29-1205 to 29-1209 (Reissue 2016). Abernathy 

primarily argues that the district court erred by finding that 

continuances of trial in response to the COVID-19 pandemic 

were for good cause. For reasons we will explain, we affirm in 

part, and in part dismiss.

BACKGROUND

Information, Pretrial Motions, and 

Initial Continuances of Trial.

On September 10, 2019, Abernathy was charged by information with one count of first degree sexual assault. He thereafter 

made several pretrial motions.

One of Abernathy’s pretrial motions was an oral motion to 

continue the trial made on October 22, 2019. The district court 

granted the request that day and set trial for January 22, 2020. 

On January 14, the district court, on its own motion, continued 

the trial to March 18.

District Court’s COVID-19 Continuances.

On March 17, 2020, the district court, again acting on 

its own motion, continued the trial previously scheduled for 

March 18 to May 20. In its order continuing the trial, the 

district court made a number of observations regarding the 

COVID-19 pandemic. It observed that the spread of COVID-19 

had begun to impact a variety of societal and governmental 

functions in Nebraska; that the President of the United States 

and the Governor of Nebraska had issued emergency proclamations; that the Chief Justice of the Nebraska Supreme Court 

had ordered the courts to continue to function but “placed 
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restrictions on individuals that may have been exposed to the 

virus”; that the U.S. District Court of Nebraska had continued 

jury trials for the month of March 2020 in an order noting that 

“the gathering of jurors may be seen as contrary to the advice 

being given by public health officials, and that these health 

concerns would likely interfere with the ability to select a jury 

and with the jury’s deliberations”; that a “Douglas County 

judge” had continued a jury trial to allow those potential jurors 

to adapt to the closing of schools and daycare facilities; that 

the district court had consulted with the local health department and, while there was no recommendation that the trial be 

continued, was advised that the situation was changing rapidly 

and that the recommendation could change in a few days; and 

that after this communication with local health authorities, 

there had been “additional restrictions from various officials 

regarding public gatherings.” Based on these reasons, the district court stated that there was “good cause” for the continuance under § 29-1207(4)(f). The district court also stated that 

it was “willing to address any speedy trial matters, including 

the findings of this order, upon the motion of a party with 

appropriate notice given.”

On the same day it entered the order continuing the trial, 

the district court held a hearing on a motion in limine filed by 

the State. During the hearing, the district court explained its 

decision to continue the trial. It also stated that if the parties 

wished to raise any issues regarding the continuance or “speedy 

trial factors,” they could file a motion. Abernathy’s counsel 

responded that she would read the order of continuance and 

then “file whatever motion needs to be filed.”

The district court continued the trial again on April 17, 2020. 

The district court’s order of continuance stated, “Given the current public health emergency due to the COVID-19 disease, 

the Court is continuing or canceling all in-person hearings and 

trials.” It found that “the safety and health of the participants 

is good cause for continuance.” Trial was scheduled for July 7 

through 24, with specific dates to be determined later.
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At a pretrial conference on June 16, 2020, both defense 

counsel and the State agreed to a trial date of September 8, and 

the district court issued an order setting trial. On August 13, 

the district court ordered the case to be called for a jury trial 

on September 9.

Motion for Discharge.

On August 31, 2020, Abernathy filed a motion for absolute 

discharge. He asserted that he was entitled to discharge because 

the State had violated his statutory and constitutional rights to 

a speedy trial. The district court held a hearing on the motion 

on September 29. It took judicial notice of the entire court file, 

and the State introduced transcripts of certain hearings held 

in the case.

Later that same day, the State filed what it styled as a 

“Motion to Establish Good Cause.” The motion requested that 

the district court find that the time between March 16 and 

September 8, 2020, was excluded for purposes of the statutory 

speedy trial calculations, because there was “good cause” for 

such delay under § 29-1207(4)(f).

A hearing was held on the State’s motion. At the hearing, 

the State offered evidence, which included (1) a March 13, 

2020, proclamation by the Governor of Nebraska declaring 

a state of emergency within the State of Nebraska due to 

COVID-19; (2) a press release from the Governor dated March 

17, 2020, reminding Nebraskans about the new guidelines 

from the Centers for Disease Control and Prevention to limit 

gatherings to 10 people or less; (3) an order dated March 18, 

2020, from the judicial district’s presiding judge excusing 

jurors from service for the next 30 days because of the public 

health emergency caused by COVID-19; (4) an order extending the aforementioned order through May 31; (5) another 

order extending the aforementioned order through the end of 

June 2020 for the district court jury panel; and (6) the district 

court’s sua sponte orders of continuance in this case. Attached 

to the presiding judge’s initial order excusing jurors from jury 
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service were affidavits from the Sarpy County jury commissioner and the clerks of the district courts of Sarpy County 

and Cass County stating that impaneling the required number 

of prospective jurors would violate public gathering limits set 

forth by the Centers for Disease Control and Prevention and 

other entities.

Abernathy objected to the State’s offer of evidence, claiming 

that the district court lacked “jurisdiction to reopen the record.” 

Abernathy argued that once he filed his motion for discharge, 

the district court could not receive evidence offered to support a finding of “good cause” under § 29-1207(4)(f). The 

district court took under advisement the question of whether it 

could receive the State’s evidence for purposes of Abernathy’s 

motion for discharge.

The district court ultimately overruled Abernathy’s motion 

for discharge in a written order. The district court found that 

Abernathy’s pretrial motions and request for a continuance 

resulted in 170 excluded days. The district court also found 

an additional period of excluded time between March 18 and 

July 1, 2020. The district court rejected Abernathy’s argument 

that it lacked jurisdiction to consider the evidence the State 

offered regarding the COVID-19 pandemic and received it for 

purposes of the motion for discharge. It then relied on that 

evidence to find that it “was effectively precluded from holding jury trials” from the entry of the continuance on March 18 

through July 1 and such delay was thus for “good cause” under 

§ 29-1207(4)(f). Accounting for the number of excluded days, 

the district court found that the State had until December 18 

to bring Abernathy to trial and that Abernathy was not entitled 

to discharge.

The district court also found no merit to Abernathy’s argument that his constitutional speedy trial rights were violated.

Abernathy appealed.

ASSIGNMENTS OF ERROR

Abernathy assigns several errors, but they can be consolidated and restated as two: (1) that the district court erred by 
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finding his statutory speedy trial rights were not violated and 

(2) that the district court erred by finding that his constitutional 

speedy trial rights were not violated.

STANDARD OF REVIEW

[1] 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. State v. Lovvorn, 303 Neb. 844, 932 N.W.2d 

64 (2019).

[2] A jurisdictional issue that does not involve a factual 

dispute presents a question of law, which an appellate court 

independently decides. Mutual of Omaha Bank v. Watson, 301 

Neb. 833, 920 N.W.2d 284 (2018).

ANALYSIS

Statutory Right to Speedy Trial.

[3] Abernathy contends that he was entitled to discharge 

because the State violated his statutory right to a speedy trial. 

The statutory right to a speedy trial is set forth in §§ 29-1207 

and 29-1208. State v. Vela-Montes, 287 Neb. 679, 844 N.W.2d 

286 (2014). Under these statutes, criminal defendants must 

be brought to trial by a 6-month deadline, but certain periods 

of delay are excluded and thus can extend the deadline. See 

Lovvorn, supra. Relevant to this appeal, § 29-1207(4)(f) provides that periods of delay not specifically enumerated in the 

statute may be excluded, “but only if the court finds that they 

are for good cause.” If a defendant is not brought to trial by 

the 6-month speedy trial deadline, as extended by any excluded 

periods, he or she is entitled to absolute discharge from the 

offense charged and for any other offense required by law to be 

joined with that offense. See Lovvorn, supra.

Abernathy’s appeal is focused on the district court’s determination that the period of time between March 18 and 

July 1, 2020, was a period of delay for good cause under 

§ 29-1207(4)(f) and thus excluded. In his initial brief on 
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appeal, Abernathy presented two arguments in support of his 

position that the district court erred in its good cause determination. First, he argued that the State was obligated to present 

evidence that would support a finding of good cause prior to 

the filing of the motion for discharge and that it did not do so. 

Second, and alternatively, he argued that even if the district 

court could consider evidence presented after the filing of the 

motion for discharge, the record did not contain evidence that 

would support a finding of good cause.

Abernathy was not the only criminal defendant to make 

such arguments to challenge findings that continuances entered 

in response to the COVID-19 pandemic were for good cause. 

After the submission of briefs in this case, we addressed substantially similar arguments in State v. Chase, ante p. 160, 

964 N.W.2d 254 (2021), and State v. Brown, ante p. 224, 964 

N.W.2d 682 (2021). In Chase, supra, we held that evidence of 

good cause is properly presented at a hearing on a motion for 

absolute discharge and need not be presented at the time of a 

court’s sua sponte order delaying trial. And in Brown, supra, 

we held that the district court did not clearly err when it found 

that continuances of trial in response to the COVID-19 pandemic in March and May 2020 were for good cause. We noted 

that the State had presented evidence of restrictions imposed as 

a result of the pandemic and that the district court had taken 

judicial notice of “various . . . orders and declarations of public 

officials and directives of health agencies such as the [local] 

Health Department and the CDC.” Id. at 236, 964 N.W.2d 

at 691.

In light of our decisions in Chase and Brown, Abernathy’s 

arguments fail. Under Chase, the State was not obligated to 

present evidence that would support a finding of good cause 

prior to the filing of the motion for discharge. And we see 

no meaningful difference between the evidence regarding the 

COVID-19 pandemic that we found supported a finding of 

good cause in Brown and the evidence offered by the State in 

this case.
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Faced with our decisions in Chase and Brown, Abernathy 

raised a new contention at oral argument. There, he contended 

that the district court lacked jurisdiction to allow the State to 

present evidence that would support a finding of good cause 

after the conclusion of the hearing on his motion for discharge 

on September 29, 2020. Abernathy’s jurisdictional argument 

is misplaced. The district court had subject matter jurisdiction 

of this criminal felony case, and prior to its order denying 

Abernathy’s motion for discharge, no appeal had been filed 

that would divest it of that jurisdiction. See, In re Estate of 

Adelung, 306 Neb. 646, 657-68 947 N.W.2d 269, 282 (2020) 

(“[s]ubject matter jurisdiction is the power of a tribunal to 

hear and determine a case in the general class or category to 

which the proceedings in question belong and to deal with the 

general subject matter involved”); Heckman v. Marchio, 296 

Neb. 458, 894 N.W.2d 296 (2017) (explaining that appellate 

court acquires jurisdiction if party appeals from final order 

or judgment).

We understand the district court to have treated the State’s 

“Motion to Establish Good Cause” as, effectively, a motion to 

reopen the record for the submission of additional evidence on 

the motion for discharge. The district court did not lack jurisdiction to reopen the record. The reopening of the record to 

receive additional evidence on the motion was a matter within 

the district court’s discretion. See, e.g., State v. Stricklin, 

290 Neb. 542, 861 N.W.2d 367 (2015) (reviewing denial of 

motion to reopen evidence for abuse of discretion); Myhra v. 

Myhra, 16 Neb. App. 920, 925, 756 N.W.2d 528, 536 (2008) 

(“[t]he reopening of a case to receive additional evidence is 

a matter within the discretion of the district court and will 

not be disturbed on appeal in the absence of an abuse of that 

discretion”).

[4] Given our conclusion that the district court did not err 

by finding that the period of time between March 18 and July 

1, 2020, was excluded for good cause, Abernathy’s argument 

that his statutory speedy trial rights were violated cannot 
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succeed. To calculate the deadline for trial under the speedy 

trial statutes, a court must exclude the day the State filed the 

information, count forward 6 months, back up 1 day, and then 

add any time excluded under § 29-1207(4). State v. Liming, 

306 Neb. 475, 945 N.W.2d 882 (2020). Because the information in this case was filed on September 10, 2019, the State 

had until March 10, 2020, to bring Abernathy to trial if there 

were no excluded days. Abernathy concedes, however, that the 

district court properly found over 100 excluded days as a result 

of his various pretrial motions and request for a continuance. 

When those excluded days and the days the district court found 

were excluded for good cause are added, time remained on 

the speedy trial clock when Abernathy filed his motion for 

discharge. The district court thus did not err in overruling the 

motion for discharge on statutory speedy trial grounds.

Constitutional Right to Speedy Trial.

Abernathy also claims that the district court erred by finding 

that his constitutional right to a speedy trial was not violated. 

We have held and reaffirmed on a number of occasions that 

the denial of a motion for discharge on statutory speedy trial 

grounds is an order that affects a substantial right in a special 

proceeding and thus is immediately appealable. See State v. 

Gibbs, 253 Neb. 241, 570 N.W.2d 326 (1997). See, also, State 

v. Williams, 277 Neb. 133, 761 N.W.2d 514 (2009). We do 

not appear, however, to have previously analyzed whether the 

denial of a motion for discharge on constitutional speedy trial 

grounds is also immediately appealable.

In their initial briefing, both parties assume that we could 

review Abernathy’s constitutional speedy trial claim in this 

appeal. That assumption is understandable as we have previously considered the merits of constitutional speedy trial arguments in other immediate appeals. See, e.g., State v. Brown, 

ante p. 224, 964 N.W.2d 682 (2021); State v. Lovvorn, 303 

Neb. 844, 932 N.W.2d 64 (2019); State v. Gill, 297 Neb. 852, 

901 N.W.2d 679 (2017); State v. Bridgeford, 298 Neb. 156, 
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903 N.W.2d 22 (2017), modified on denial of rehearing 299 

Neb. 22, 907 N.W.2d 15 (2018), and disapproved on other 

grounds, Lovvorn, supra; State v. Hettle, 288 Neb. 288, 848 

N.W.2d 582 (2014); State v. Loyd, 269 Neb. 762, 696 N.W.2d 

860 (2005); State v. Feldhacker, 267 Neb. 145, 672 N.W.2d 

627 (2004); State v. Tucker, 259 Neb. 225, 609 N.W.2d 306 

(2000). We did not, however, analyze our appellate jurisdiction 

in those cases, and we cannot merely assume that it exists. To 

the contrary, it is our duty to independently determine whether 

we have jurisdiction over the matters before us. See State 

v. Uhing, 301 Neb. 768, 919 N.W.2d 909 (2018). With that 

duty in mind, we ordered the parties to submit supplemental 

briefs addressing whether we have appellate jurisdiction over 

Abernathy’s claim that the district court erred by finding that 

he was not entitled to discharge on constitutional speedy trial 

grounds. We take up that issue now.

An assessment of whether we have appellate jurisdiction to 

consider Abernathy’s constitutional speedy trial argument must 

begin with Neb. Rev. Stat. § 25-1902(1) (Cum. Supp. 2020). 

That statute enumerates four categories of “final orders,” 

which appellate courts are authorized to “vacate[], modif[y], or 

reverse[].” See, also, Neb. Rev. Stat. § 25-1911 (Reissue 2016) 

(“[a] judgment rendered or final order made by the district 

court may be reversed, vacated, or modified for errors appearing on the record”). The denial of a motion for discharge based 

on constitutional speedy trial grounds could possibly fit in only 

one of those categories—“[a]n order affecting a substantial 

right made during a special proceeding.” § 25-1902(1)(b). But 

as we will explain, we find that it does not.

Our conclusion—that an order denying a motion for discharge based on constitutional speedy trial grounds is not an 

order affecting a substantial right during a special proceeding—is largely informed by the Nebraska Court of Appeals’ 

opinion in State v. Wilson, 15 Neb. App. 212, 724 N.W.2d 99 

(2006). There, the Court of Appeals concluded that such an 
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order, standing on its own, does not affect a substantial right 

and is not issued in a special proceeding.

In support of its conclusion that such an order, standing 

on its own, does not affect a substantial right, the Court of 

Appeals relied on United States v. MacDonald, 435 U.S. 850, 

98 S. Ct. 1547, 56 L. Ed. 2d 18 (1978), a U.S. Supreme Court 

case in which the court held that a defendant may not take an 

interlocutory appeal of an order denying a motion to dismiss 

an indictment based on constitutional speedy trial grounds. 

The Court of Appeals observed that in MacDonald, the U.S. 

Supreme Court determined that the constitutional speedy trial 

right was not a “right not to be tried” and that constitutional 

speedy trial claims, because they usually depend on a showing of prejudice, are best assessed after the development of 

facts at a trial. Wilson, 15 Neb. App. at 220, 724 N.W.2d at 

107, quoting MacDonald, supra (internal quotation marks 

omitted). In support of its conclusion that an order denying 

a motion for discharge based on constitutional speedy trial 

grounds is not issued in a special proceeding, the Court of 

Appeals in Wilson noted that, unlike the statutory right to a 

speedy trial, the constitutional right to a speedy trial is not a 

statutory remedy and does not authorize a special application 

to a court to enforce it.

[5] A few years after the Court of Appeals’ opinion in 

Wilson, we briefly commented upon it in State v. Williams, 277 

Neb. 133, 761 N.W.2d 514 (2009). In the course of rejecting 

an argument that we should overrule our precedent finding 

that orders denying motions for discharge based on statutory 

speedy trial rights are immediately appealable, we observed 

that the Court of Appeals “correctly noted” in Wilson that 

“‘speedy trial claims based on statutory grounds are more 

amenable to resolution prior to trial than are those claims 

based on constitutional grounds.’” Id. at 137, 761 N.W.2d at 

520, quoting Wilson, supra. While our approving language in 

Williams may have been dicta in that case, we continue to find 

compelling the reasoning in Wilson that an order denying a 
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motion for discharge on constitutional speedy trial grounds is 

best resolved after a trial. And given this conclusion, we could 

hardly say that the constitutional right to a speedy trial would 

be significantly undermined or irrevocably lost by postponing 

appellate review, an essential quality of an order that affects a 

substantial right. See Tilson v. Tilson, 299 Neb. 64, 907 N.W.2d 

31 (2018). We thus conclude that a pretrial order denying a 

motion for discharge on constitutional speedy trial grounds 

does not affect a substantial right in a special proceeding for 

purposes of § 25-1902(1)(b).

Although the foregoing conclusion may appear to signal 

the end of the jurisdictional road, a bit more lies ahead. And 

that is because, in some circumstances, our law allows appellate courts, in the course of reviewing properly appealed final 

orders, to also consider the merits of other decisions that would 

not be final orders standing on their own. In Wilson, the Court 

of Appeals relied on this law to conclude that appellate courts 

could review the overruling of a motion alleging a violation 

of the constitutional speedy trial right if raised in the context 

of an appeal also asserting a nonfrivolous claim that the court 

erred by overruling a motion for discharge based on statutory 

speedy trial grounds. In his supplemental brief, Abernathy 

contends that because he raised a nonfrivolous claim of error 

regarding the overruling of his statutory speedy trial right, we 

may consider his constitutional speedy trial claim. We find that 

our statutes governing appellate jurisdiction do not permit us 

to do so.

In Wilson, the Court of Appeals relied on State v. Loyd, 

269 Neb. 762, 696 N.W.2d 860 (2005), to find that defendants 

could obtain review of a constitutional speedy trial motion for 

discharge if joined with a nonfrivolous statutory speedy trial 

claim. In particular, the Court of Appeals relied on language in 

Loyd stating that “[a]n appeal from a final order may raise, on 

appeal, every issue presented by the order that is the subject 

of the appeal.” 269 Neb. at 771, 696 N.W.2d at 869. The principal authority for this citation in Loyd was an Indiana case, 
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Tom-Wat, Inc. v. Fink, 741 N.E.2d 343 (Ind. 2001). In that 

case, the trial court filed a single order denying both parties’ 

cross-motions for summary judgment. On appeal, the Indiana 

Supreme Court concluded that the denials of both motions 

for summary judgment were properly before it, citing another 

Indiana Supreme Court case for the proposition that “an interlocutory appeal raises every issue presented by the order that is 

the subject of the appeal.” Id. at 346, citing Harbour v. Arelco, 

Inc., 678 N.E.2d 381 (Ind. 1997).

The meaning of this particular language in Loyd is not 

immediately obvious. Viewed in isolation, one might read it to 

suggest that a party could obtain appellate review of any trial 

court finding or directive that happens to appear within a document in which the trial court also issues an order that qualifies 

as a final order under § 25-1902(1). Such a reading, however, 

would find no support in our statutes conferring appellate 

jurisdiction or our cases applying them. To the contrary, our 

appellate cases recognize that a trial court’s every finding 

and directive does not become immediately reviewable just 

because it happens to appear in a document containing a final, 

appealable order. See, e.g., State v. Gill, 297 Neb. 852, 901 

N.W.2d 679 (2017) (concluding that even if order upon which 

jurisdiction is based had also disposed of separate motion, portion of order addressing separate issue would not have been 

appealable).

So when does the appeal of a final order allow a party 

to also obtain review of a nonfinal order? We believe that 

§ 25-1911 supplies the answer. As Loyd went on to explain, 

§ 25-1911 limits the authority of appellate courts to reversing, 

vacating, or modifying the final order from which the appeal 

is taken. On some occasions, in order for an appellate court to 

determine whether a final order was erroneous or void and thus 

subject to reversal, vacation, or modification, it must review 

a trial court’s determination of other issues. But when, in the 

language of Loyd, a district court’s resolution of another issue 

“do[es] not bear on the correctness of the final order upon 
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which its appellate jurisdiction is based” it cannot be reviewed. 

269 Neb. at 771, 696 N.W.2d at 869.

Our precedent illustrates the line between the two categories of cases discussed above. In Loyd, we concluded that we 

could not review the district court’s earlier denial of a motion 

for discharge based on statute of limitations grounds because 

whether the prosecution was barred by the statute of limitations did not affect whether the final order that was the subject 

of the appeal was properly overruled. See, also, Gill, supra. 

On the other hand, in In re Interest of Michael N., 302 Neb. 

652, 925 N.W.2d 51 (2019), we held that we could review the 

denial of motions to dismiss filed by parents in a juvenile case 

even though, standing alone, they would not be appealable. We 

concluded we could review the motions to dismiss because the 

parents had also appealed a detention order, which was final 

and appealable, and if the action should have been dismissed 

pursuant to the motions to dismiss, “we would be required to 

reverse, vacate, or modify the detention order.” Id. at 667, 925 

N.W.2d at 62. Similarly, in Breci v. St. Paul Mercury Ins. Co., 

288 Neb. 626, 637, 849 N.W.2d 523, 532 (2014), we found that 

we could review various nonfinal orders “because a reversal on 

any of the nonfinal orders would require us to reverse, vacate, 

or modify the final judgment.”

These cases also demonstrate that we cannot review 

Abernathy’s claim that the district court erred by overruling 

his motion for discharge on constitutional speedy trial grounds. 

The final order that is the subject of this appeal is the overruling of Abernathy’s motion for discharge on statutory speedy 

trial grounds. That is thus the order that is subject to possible 

reversal, vacation, or modification under § 25-1911. But even 

a determination that the district court erred by not granting discharge on constitutional speedy trial grounds would not require 

the reversal, vacation, or modification of the order overruling 

the motion for discharge on statutory speedy trial grounds. As 

we have said on many occasions, “the constitutional right to 

a speedy trial and the statutory implementation of that right 
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exist independently of each other.” State v. Brooks, 285 Neb. 

640, 643, 828 N.W.2d 496, 499 (2013).

Moreover, those independent rights are subject to very different modes of analysis, with the statutory speedy trial right 

analyzed as essentially a math problem with no requirement 

of prejudice, see State v. Gnanaprakasam, ante p. 519, 967 

N.W.2d 89 (2021), while the question of whether the constitutional right has been violated is determined through the application of a multifactor balancing test in which prejudice to the 

defendant is one of the factors, see State v. Brown, ante p. 224, 

964 N.W.2d 682 (2021). We recognize that we have said that 

the statutory speedy trial deadline “provides a useful standard 

for assessing” one of the factors in that multifactor balancing 

test. See State v. Lovvorn, 303 Neb. 844, 852, 932 N.W.2d 64, 

70 (2019). But even so, a determination that the district court 

erred by overruling Abernathy’s motion for discharge on constitutional speedy trial grounds would not affect whether we 

would be obligated to vacate, reverse, or modify the district 

court’s separate determination that time remained on the statutory speedy trial clock at the time Abernathy filed his motion 

for discharge. Consequently, we may not review the order 

overruling the motion for discharge on constitutional speedy 

trial grounds at this time.

As noted above, we acknowledge that in a number of cases 

in which defendants filed immediate appeals of orders overruling motions for discharge on constitutional speedy trial 

grounds, we have proceeded to the substance of the claim 

without stopping to analyze our appellate jurisdiction. Having 

now considered the issue in this case, however, we determine 

we lack appellate jurisdiction and thus dismiss that portion of 

the appeal.

CONCLUSION

We conclude that the district court did not err in determining that Abernathy was not entitled to absolute discharge on 

statutory speedy trial grounds. We find that we lack appellate 
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Nebraska Supreme Court Advance Sheets

310 Nebraska Reports

STATE v. ABERNATHY

Cite as 310 Neb. 880

jurisdiction to review his claim that he was entitled to absolute 

discharge on constitutional speedy trial grounds. Accordingly, 

we affirm in part, and in part dismiss.

Affirmed in part, and in part dismissed.

Heavican, C.J., not participating.