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Nebraska Supreme Court Advance Sheets

307 Nebraska Reports

STATE v. CHAPMAN

Cite as 307 Neb. 443

State of Nebraska, appellee, v. 

Ellis Chapman, appellant.

___ N.W.2d ___

Filed October 9, 2020. No. S-19-1065.

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. Speedy Trial: Final Orders: Appeal and Error. An order denying an 

accused criminal’s nonfrivolous motion for absolute discharge on statutory speedy trial grounds is a ruling affecting a substantial right in a 

special proceeding and is therefore final and appealable under Neb. Rev. 

Stat. § 25-1902(1)(b) (Supp. 2019).

3. Speedy Trial: Indictments and Informations: Complaints. Although 

Nebraska’s speedy trial statutes, Neb. Rev. Stat. § 29-1201 et seq. 

(Reissue 2016), expressly refer to indictments and informations, they 

also apply to prosecutions commenced by the filing of a complaint in 

county court.

4. Speedy Trial. To calculate the time for 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 defendant can 

be tried.

5. Speedy Trial: Proof. The burden of proof is upon the State to show 

that one or more of the excluded time periods under Neb. Rev. Stat. 

§ 29-1207(4) (Reissue 2016) are applicable when the defendant is not 

tried within 6 months.

6. ____: ____. To overcome a defendant’s motion for discharge on speedy 

trial grounds, the State must prove the existence of excluded time by a 

preponderance of the evidence.

7. Speedy Trial. Under Neb. Rev. Stat. § 29-1208 (Reissue 2016), if a 

defendant is not brought to trial before the running of the time for 

trial as provided for in Neb. Rev. Stat. § 29-1207 (Reissue 2016), as 

Nebraska Supreme Court Online Library

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11/13/2020 08:07 AM CST
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STATE v. CHAPMAN

Cite as 307 Neb. 443

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.

Appeal from the District Court for Hall County, John H. 

Marsh, Judge, on appeal thereto from the County Court for 

Hall County, Arthur S. Wetzel, Judge. Judgment of District 

Court reversed and remanded with directions.

Jerrod P. Jaeger, Deputy Hall County Public Defender, for 

appellant.

Douglas J. Peterson, Attorney General, and Jordan Osborne 

for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

and Papik, JJ.

Papik, J.

On March 29, 2017, the State filed theft charges against Ellis 

Chapman. Chapman did not appear for a scheduled arraignment 

approximately 2 weeks later, and the county court for Hall 

County issued a warrant for his arrest. Chapman was eventually arrested over 2 years later on April 24, 2019. Chapman 

later moved for absolute discharge under Nebraska’s speedy 

trial statutes. The county court overruled Chapman’s motion, 

finding that the time during which the arrest warrant was pending was excluded under the speedy trial statutes. The district 

court affirmed. Chapman now appeals to us, and we reverse, 

and remand. Because Chapman was not brought to trial within 

6 months of the filing of charges and the State failed to carry 

its burden to show that any time was excluded for speedy trial 

purposes, Chapman was entitled to absolute discharge under 

the speedy trial statutes.

BACKGROUND

Charge and Arrest.

On March 29, 2017, Chapman was charged by complaint 

in Hall County Court with one count of theft by unlawful 
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STATE v. CHAPMAN

Cite as 307 Neb. 443

taking, $500 or less, second offense, a Class I misdemeanor. 

An arraignment was scheduled for April 12.

On the day of the scheduled arraignment, Chapman did not 

appear. During proceedings on the record, the State requested 

that the county court issue a warrant for his arrest. After finding probable cause that Chapman committed the offense, the 

county court issued an arrest warrant.

Chapman was eventually arrested, but not until April 24, 

2019. One day later, he was brought before the county court 

where he pleaded not guilty to the pending charge. Then on 

July 1, Chapman filed a motion for absolute discharge. In 

it, Chapman asserted he was entitled to absolute discharge, 

because he had been denied his statutory right to a speedy 

trial guaranteed by Neb. Rev. Stat. §§ 29-1207 and 29-1208 

(Reissue 2016).

Speedy Trial Proceedings.

At the hearing on Chapman’s motion for absolute discharge, 

the State offered the arrest warrant and subsequent orders 

extending it. The State did not present any evidence regarding efforts to serve the arrest warrant. The State also offered 

and the county court received a copy of a letter from the 

Hall County Attorney addressed to Chapman at an address in 

Omaha, Nebraska. The letter was dated March 28, 2017, and 

directed Chapman to appear in the county court on April 12, 

2017, to answer for the theft charge. The letter was introduced 

without any accompanying testimony. At the April 25, 2019, 

hearing, during an exchange with the county court regarding his failure to appear for the April 12, 2017, arraignment, 

Chapman stated that he lived at a different Omaha address.

The county court overruled Chapman’s motion for absolute discharge from the bench and characterized it as “frivolous.” The county court stated that the period of time during 

which the arrest warrant was pending was excluded under the 

speedy trial statutes. With that time excluded, it concluded that 

Chapman’s speedy trial rights had not been denied when he 

filed his motion for absolute discharge.
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307 Nebraska Reports

STATE v. CHAPMAN

Cite as 307 Neb. 443

Chapman appealed the denial of his motion for absolute discharge to the district court. In his statement of errors, Chapman 

asserted that the county court erred by finding that the time 

during which the arrest warrant was pending did not count 

toward the statutory speedy trial deadline. He also asserted that 

the county court denied him a fair hearing and demonstrated 

bias and prejudice by finding his motion was frivolous.

Although the district court disagreed with the county court’s 

finding that Chapman’s motion was frivolous, it affirmed the 

denial of the motion for absolute discharge. The district court 

concluded that the county court did not demonstrate bias 

or prejudice and that it properly found that the time during 

which the arrest warrant was pending was excluded for speedy 

trial purposes.

Chapman now appeals the ruling of the district court.

ASSIGNMENTS OF ERROR

Chapman assigns two errors on appeal. He contends that the 

district court erred by (1) finding that the county court correctly determined that the time during which the arrest warrant 

was pending was excluded for statutory speedy trial purposes 

and (2) finding that the county court had not denied Chapman 

a fair hearing.

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).

ANALYSIS

Jurisdiction.

[2] We begin by briefly addressing our jurisdiction to hear 

this appeal. We have held on a number of occasions that 

an order denying an accused criminal’s nonfrivolous motion 

for absolute discharge on statutory speedy trial grounds is 
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STATE v. CHAPMAN

Cite as 307 Neb. 443

a ruling affecting a substantial right in a special proceeding 

and is therefore final and appealable under Neb. Rev. Stat. 

§ 25-1902(1)(b) (Supp. 2019). See, e.g., State v. Gill, 297 Neb. 

852, 901 N.W.2d 679 (2017). Here, the county court concluded 

that Chapman’s motion for absolute discharge was frivolous. 

If that were the case, we would lack jurisdiction and would be 

required to dismiss the appeal. We will not, however, dismiss 

the appeal, because, as we will explain, Chapman’s motion was 

not only not frivolous, it was meritorious.

Speedy Trial Background.

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). Section 29-1207(1) expressly refers to indictments 

and informations, requiring that those “indicted or informed 

against for any offense shall be brought to trial within six 

months,” adding that “such time shall be computed as provided 

in this section.” In this case, charges were commenced against 

Chapman not by indictment or information, but by the filing of 

a complaint in county court.

[3] Although the speedy trial statutes expressly refer to 

indictments and informations, in State v. Stevens, 189 Neb. 

487, 203 N.W.2d 499 (1973), this court held that they also 

apply to prosecutions commenced by the filing of a complaint 

in county court. We have subsequently observed that Stevens 

did so based on “questionable reasoning,” but, in light of subsequent case law and the Legislature’s apparent acquiescence 

in our construction, we have continued to apply the speedy 

trial statutes to cases commenced by the filing of a complaint 

in county court. See State v. Schanaman, 286 Neb. 125, 133, 

835 N.W.2d 66, 71 (2013). See, also, State v. Lebeau, 280 Neb. 

238, 241, 784 N.W.2d 921, 925 (2010) (“it is well settled that 

the [speedy trial statutes] also appl[y] to prosecutions on complaint in county court”).

As noted above, the speedy trial statutes set a 6-month 

deadline in which a defendant must be brought to trial, but 

also provide that such time “shall be computed as provided 
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STATE v. CHAPMAN

Cite as 307 Neb. 443

in this section.” § 29-1207(1). Section 29-1207(4) goes on to 

provide a number of circumstances in which the 6-month clock 

to bring a defendant to trial is essentially stopped. See State v. 

Liming, 306 Neb. 475, 945 N.W.2d 882 (2020).

[4-7] To calculate the time for 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 § 29-1207(4) to determine the last day the defendant 

can be tried. Lebeau, supra. The burden of proof is upon the 

State to show that one or more of the excluded time periods 

under § 29-1207(4) are applicable when the defendant is not 

tried within 6 months. State v. Williams, 277 Neb. 133, 761 

N.W.2d 514 (2009). The State must prove the existence of 

excluded time by a preponderance of the evidence. See id.

Under § 29-1208, if a defendant is not brought to trial before 

the 6-month deadline, as extended by any excluded periods, 

expires, 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 Liming, supra.

Speedy Trial Analysis.

Applying the speedy trial calculations in this case, the State 

had until September 29, 2017, to bring Chapman to trial unless 

it carried its burden to show the existence of excluded time. 

Section 29-1207(4)(d) does provide that a “period of delay 

resulting from the absence or unavailability of the defendant” 

is excluded. The county court and district court apparently 

believed that any time in which a defendant fails to appear and 

an arrest warrant is issued, the defendant is considered absent 

or unavailable under § 29-1207(4)(d) for all of the time during which the arrest warrant was pending. As we will explain, 

and as the State concedes, this conclusion is not supported by 

our precedent.

In State v. Richter, 240 Neb. 223, 481 N.W.2d 200 (1992), 

we addressed the circumstances under which the pendency 

of an arrest warrant may result in excluded time under 

§ 29-1207(4)(d). In Richter, we explained that, generally, no 
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STATE v. CHAPMAN

Cite as 307 Neb. 443

excluded time arises under § 29-1207(4)(d) if the defendant 

fails to appear at a court proceeding of which he or she was 

not provided notice. We recognized a possible exception to this 

rule, however, suggesting that the pendency of a warrant 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.” Richter, 240 

Neb. at 230, 481 N.W.2d at 206. The State acknowledges that 

under Richter, the pendency of an arrest warrant can result 

in excluded time under § 29-1207(4)(d) only if the State also 

proves it used diligent efforts to serve that warrant. It also 

admits that it introduced no such proof in this case.

Although the State concedes that the county court and district court erred by finding that the pending warrant resulted in 

excluded time, it contends that this case should be remanded to 

the county court because it made incomplete factual findings. 

Specifically, the State asserts that we should direct the county 

court to make a finding as to whether Chapman received notice 

of the April 12, 2017, scheduled arraignment at which he did 

not appear.

The State’s position regarding the need for an additional 

factual finding apparently arises out of its understanding that 

Richter holds that if a defendant fails to appear at a proceeding 

of which he or she had actual notice, the defendant is absent or 

unavailable under § 29-1207(4)(d) and excluded time results. 

Chapman disputes this reading of Richter, contending that 

the case holds that a defendant is absent or unavailable under 

§ 29-1207(4)(d) only if he or she fails to appear at a proceeding for which he or she was provided notice through a means 

of service prescribed by statute. He contends there is no proof 

of such service here.

In the end, it is not necessary for us to resolve the parties’ 

competing interpretations of Richter. Even if the State is correct that a defendant’s failure to appear at a proceeding of 

which he or she had actual notice results in excluded time, the 

State did not introduce any evidence that Chapman received 

actual notice of the April 12, 2017, scheduled arraignment. 
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307 Nebraska Reports

STATE v. CHAPMAN

Cite as 307 Neb. 443

The county court did receive into evidence a copy of the letter 

from the county attorney addressed to Chapman referencing the 

arraignment scheduled for April 12. But the State introduced 

no evidence that would allow a reasonable finder of fact to 

conclude that Chapman, in fact, received this letter. There was 

no testimony or other evidence about how, when, or by whom 

the letter was sent; how the address listed on the letter was 

obtained; why Chapman could be expected to receive the letter 

at that address; or whether the State had any other reason to 

believe that Chapman received the letter. The State admitted 

at oral argument that it failed to introduce evidence by which 

the county court could have concluded that Chapman received 

notice of the arraignment scheduled for April 12.

Despite its concession at oral argument that there was 

no evidence in the record that would permit a finding that 

Chapman received notice of the arraignment scheduled for 

April 12, 2017, the State continued to maintain that the case 

should be remanded to the county court for additional factual findings. This was required, the State suggested, by our 

cases holding that appellate review of speedy trial calculations 

requires complete factual findings. See, e.g., State v. Lintz, 298 

Neb. 103, 902 N.W.2d 683 (2017). We disagree that our cases 

compel that result. While we have said that we cannot review 

a trial court’s factual determinations for clear error if no such 

determinations have been made, see Lintz, supra, that principle 

would justify remand for additional factual findings only when 

there is competent evidence in the record that would allow the 

trial court to reach more than one factual conclusion without 

committing clear error. In a case like this one, however, where 

all agree that there is no competent evidence that would allow 

the county court to reasonably conclude that Chapman received 

notice of the arraignment scheduled for April 12, remand 

would serve no purpose.

Because the State did not carry its burden to show that 

any time was excluded from the speedy trial calculation and 

because it did not bring Chapman to trial within 6 months 

of the filing of charges, Chapman was entitled to absolute 
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STATE v. CHAPMAN

Cite as 307 Neb. 443

discharge. Given our conclusion that Chapman was entitled 

to absolute discharge, there is no reason to address his second 

assignment of error, contending that he was denied a fair hearing in the county court.

CONCLUSION

The county court and district court erred by finding that the 

pendency of the warrant resulted in excluded time. And the 

State did not introduce sufficient evidence at the speedy trial 

hearing that could support any other basis for excluded time. 

Because there was no evidence that would support a finding 

of excluded time and because Chapman was not brought to 

trial within 6 months of the filing of charges, he was entitled 

to absolute discharge under the speedy trial statutes. We thus 

reverse the district court’s order and remand the cause with 

directions for that court to reverse the county court’s order and 

remand the cause with directions to grant Chapman absolute 

discharge and dismiss the complaint against him.

Reversed and remanded with directions.

Freudenberg, J., not participating.