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309 Nebraska Reports

STATE v. HERNANDEZ

Cite as 309 Neb. 299

State of Nebraska, appellee, v. 

Jaime A. Hernandez, Jr., appellant.

___ N.W.2d___

Filed May 21, 2021. No. S-20-719.

1. Judgments: Speedy Trial: Appeal and Error. 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: Appeal and Error. Under a clearly erroneous standard of 

review, an appellate court does not reweigh the evidence but considers 

the judgment in a light most favorable to the successful party, resolving 

evidentiary conflicts in favor of the successful party, who is entitled to 

every reasonable inference deducible from the evidence.

3. Statutes: Appeal and Error. Statutory interpretation presents a question of law, which an appellate court reviews independently of the lower 

court’s determination.

4. Speedy Trial. The primary burden of bringing an accused person to trial 

within the time provided by law is upon the State.

5. ____. 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 defendant can 

be tried.

6. ____. When calculating the time for speedy trial purposes, the State 

bears the burden to show, by the greater weight of the evidence, that one 

or more of the excluded time periods under Neb. Rev. Stat. § 29-1207(4) 

(Reissue 2016) are applicable.

7. Pleadings: Evidence: Waiver: Words and Phrases. A judicial admission, as a formal act done in the course of judicial proceedings, is a 

substitute for evidence and thereby waives and dispenses with the production of evidence by conceding for the purpose of litigation that the 

proposition of fact alleged by an opponent is true.

Nebraska Supreme Court Online Library

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

08/06/2021 01:09 AM CDT
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STATE v. HERNANDEZ

Cite as 309 Neb. 299

8. Pleadings: Intent. Judicial admissions must be deliberate, clear, and 

unequivocal, and they do not extend beyond the intent of the admission 

as disclosed by its context.

9. Pleadings. Formal acts that may operate as judicial admissions include 

statements made in pleadings.

10. Trial: Attorney and Client. Statements made by a party or his or her 

attorney during the course of a trial may be judicial admissions.

11. Speedy Trial: Notice. 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.

12. Speedy Trial: Words and Phrases. For purposes of Neb. Rev. Stat. 

§ 29-1207(4)(a) (Reissue 2016), a proceeding is, in a more particular 

sense, any application to a court of justice, however made, for aid in the 

enforcement of rights, for relief, for redress of injuries, for damages, or 

for any remedial object.

Appeal from the District Court for Douglas County: Marlon 

A. Polk, Judge. Reversed and remanded with directions.

Thomas C. Riley, Douglas County Public Defender, and 

Rebekah S. Keller for appellant.

Douglas J. Peterson, Attorney General, and Jordan Osborne 

for appellee.

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

Papik, and Freudenberg, JJ.

Cassel, J.

INTRODUCTION

Jaime A. Hernandez, Jr., appeals from the denial of absolute 

discharge pursuant to the speedy trial statute. 1 At the hearing, the State argued that, despite no evidence of any effort to 

serve a bench warrant, its mere issuance “stopped the clock 

for purposes of speedy trial.” Realizing that the argument 

below was flawed, 2 the State on appeal relies upon Hernandez’ 

1 See Neb. Rev. Stat. §§ 29-1205 to 29-1209 (Reissue 2016).

2 See, e.g., State v. Chapman, 307 Neb. 443, 949 N.W.2d 490 (2020).
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STATE v. HERNANDEZ

Cite as 309 Neb. 299

“‘judicial admissions’” to prove excludable time. 3 While we 

agree a defendant’s admissions may be so used, neither the 

admissions here nor reasonable inferences from them established excludable time for either “absence or unavailability” 4

or “other proceedings.” 5 Therefore, we reverse, and remand.

BACKGROUND

By an information filed on January 15, 2020, the State 

charged Hernandez with one count of possession of methamphetamine, a Class IV felony. He pled not guilty in writing and 

was released from custody, pending trial, under the condition 

that he participate in the “24/7 Sobriety Program.” The written 

plea did not specify any date requiring his appearance in court. 

On the same day that his written plea was filed, both a motion 

for discovery and an order for reciprocal discovery (thereby 

disposing of the discovery motion) were filed.

On April 16, 2020, a bench warrant was issued for Hernandez’ 

arrest due to his nonparticipation in the 24/7 program. Our 

record does not show that any effort was made to serve the 

warrant. No other proceedings occurred within 6 months of the 

State bringing the charge.

On August 4, 2020, Hernandez filed a motion for absolute discharge, alleging a violation of his statutory speedy 

trial rights pursuant to § 29-1207. His motion, in addition to 

requesting discharge, stated factual allegations.

Among the factual statements specifically set forth in the 

motion, it informed the court:

•The information was “filed on January 15, 2020.”

•“That on or about February 21, 2020, to April 3, 2020, 

[Hernandez] was incarcerated in Iowa.”

•“That on or about June 3, 2020, [Hernandez] was incarcerated 

in Iowa and remains in custody.”

3 Brief for appellee at 7.

4 See § 29-1207(4)(d).

5 See § 29-1207(4)(a).
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STATE v. HERNANDEZ

Cite as 309 Neb. 299

•“That on or about April 16, 2020, [the district court] issued 

a warrant for [Hernandez’] arrest for violation of 24/7 

Sobriety Program.”

•“That this warrant was never served on [Hernandez].”

Hernandez’ motion did not make any other reference to proceedings pending against him in Iowa.

At the hearing on Hernandez’ motion, the State presented no 

evidence. The State argued that the issuance of the bench warrant “stopped the clock for purposes of speedy trial.” Hernandez’ 

counsel disagreed and responded by reiterating the statements 

made in the motion, but she did not refer to any pending 

proceedings against Hernandez. Instead, Hernandez’ counsel 

verbally informed the court that Hernandez was expected to 

“complete that sentence” in January 2021.

The district court overruled Hernandez’ motion. In the 

court’s written order, it noted that “[Hernandez] has been, and 

remains, in custody in . . . Iowa for unrelated charges since 

February 21, 2020.” The court determined that there was a 

delay in Hernandez’ trial due to the “‘absence or unavailability of [Hernandez]’” and the “‘other proceedings concerning 

[Hernandez],’” which both constituted provided grounds for 

an excludable period under the speedy trial statute. Finding 

114 days of excludable time, the court determined Hernandez’ 

statutory speedy trial rights had not been violated.

Hernandez perfected a timely appeal, which we moved to 

our docket. 6

ASSIGNMENTS OF ERROR

Hernandez assigns overarching error in the district court’s 

denial of his motion for absolute discharge. He specifically assigns, reordered, that the court erred in doing so, 

(1) “where the State failed to introduce evidence that could 

support any finding of excludable time,” (2) by finding an 

excludable period of time under § 29-1207(4)(d) (absence or 

6 See Neb. Rev. Stat. § 24-1106(2) and (3) (Cum. Supp. 2020).
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STATE v. HERNANDEZ

Cite as 309 Neb. 299

unavailability), and (3) by finding an excludable period of time 

under § 29-1207(4)(a) (other proceedings).

STANDARD OF REVIEW

[1,2] 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. 7 Under a clearly erroneous standard of review, an 

appellate court does not reweigh the evidence but considers 

the judgment in a light most favorable to the successful party, 

resolving evidentiary conflicts in favor of the successful 

party, who is entitled to every reasonable inference deducible 

from the evidence. 8

[3] Statutory interpretation presents a question of law, which 

an appellate court reviews independently of the lower court’s 

determination. 9

ANALYSIS

We begin by noting, as did the district court, that Hernandez 

asserts his rights only under the speedy trial statute. 10 He does 

not rely upon the interstate Agreement on Detainers. 11

General Speedy Trial Principles

[4] In Nebraska, a criminal defendant’s statutory speedy 

trial rights are governed by §§ 29-1207 and 29-1208. 12

Summarized, § 29-1207 requires that every person “indicted 

or informed against for any offense shall be brought to trial 

within six months” and generally provides that the “six-month 

period shall commence to run from the date the indictment is 

7 State v. Blocher, 307 Neb. 874, 951 N.W.2d 499 (2020).

8 State v. Pullens, 281 Neb. 828, 800 N.W.2d 202 (2011).

9 Blocher, supra note 7.

10 See §§ 29-1205 to 29-1209.

11 See Neb. Rev. Stat. §§ 29-759 to 29-765 (Reissue 2016).

12 State v. Jennings, 308 Neb. 835, 957 N.W.2d 143 (2021).
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STATE v. HERNANDEZ

Cite as 309 Neb. 299

returned or the information filed.” 13 The primary burden of 

bringing an accused person to trial within the time provided by 

law is upon the State. 14

[5] 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 § 29-1207(4) to determine the last day the 

defendant can be tried. 15 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.” 16

Here, the State charged Hernandez by information on 

January 15, 2020. Excluding the day the information was filed, 

counting forward 6 months, and backing up 1 day, the State 

was required to bring Hernandez to trial on or before July 15 

unless some period of that time was excludable.

[6] When calculating the time for speedy trial purposes, the 

State bears the burden to show, by the greater weight of the 

evidence, that one or more of the excluded time periods under 

§ 29-1207(4) are applicable. 17 This burden—viewed through 

the prism of our standard of review—and how that burden may 

be satisfied are at the heart of this appeal.

Judicial Admissions

Hernandez asserts that by presenting no evidence at the 

hearing on his motion, the State necessarily failed to meet 

its burden of proof. The State responds that it was entitled to 

13 Accord Jennings, supra note 12.

14 State v. Steele, 261 Neb. 541, 624 N.W.2d 1 (2001).

15 Jennings, supra note 12.

16 § 29-1208. Accord Jennings, supra note 12.

17 See Jennings, supra note 12. See, also, State v. Gilliam, 292 Neb. 770, 

874 N.W.2d 48 (2016) (preponderance of evidence is equivalent of greater 

weight of evidence).
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STATE v. HERNANDEZ

Cite as 309 Neb. 299

rely on Hernandez’ judicial admissions—particularly, those 

made in his motion. We agree with the State.

[7-10] A judicial admission, as a formal act done in the 

course of judicial proceedings, is a substitute for evidence and 

thereby waives and dispenses with the production of evidence 

by conceding for the purpose of litigation that the proposition 

of fact alleged by an opponent is true. 18 Judicial admissions 

must be deliberate, clear, and unequivocal, and they do not 

extend beyond the intent of the admission as disclosed by its 

context. 19 Formal acts that may operate as judicial admissions 

include statements made in pleadings. 20 Further, statements 

made by a party or his or her attorney during the course of a 

trial may be judicial admissions. 21

We see no reason why these principles should not apply to 

admissions made in a motion for absolute discharge filed under 

§§ 29-1205 to 29-1209. We express no opinion regarding their 

applicability to other proceedings governed by chapter 29 of 

the Nebraska Revised Statutes.

Hernandez judicially admitted that (1) he was charged by 

information on January 15, 2020; (2) he was incarcerated in 

Iowa on February 21 to April 3; (3) the court issued a bench 

warrant for him on April 16, but it was never served on him; (4) 

he was then incarcerated in Iowa since June 3; and (5) he was 

expected to complete his Iowa sentence in January 2021.

The State was entitled to take advantage of these admissions. Therefore, the State’s failure to produce its own evidence did not necessarily mean that the district court erred in 

overruling Hernandez’ motion. Hernandez’ first specific assignment lacks merit. We now turn to the question of whether the 

18 State v. Canady, 263 Neb. 552, 641 N.W.2d 43 (2002).

19 State v. Burke, 23 Neb. App. 750, 876 N.W.2d 922 (2016).

20 See Wisner v. Vandelay Investments, 300 Neb. 825, 916 N.W.2d 698 

(2018).

21 See Neb. Rev. Stat. § 7-107(2) (Reissue 2012).
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STATE v. HERNANDEZ

Cite as 309 Neb. 299

district court clearly erred in finding Hernandez’ admissions 

sufficient to establish excludable time.

“Absence or Unavailability” Exclusion

Hernandez assigns that the court erred by finding an excludable period for time existed under § 29-1207(4)(d). This subsection provides that an excludable period of time for speedy 

trial purposes may result from the “period of delay resulting 

from the absence or unavailability of the defendant.” 22 Whether 

a defendant’s unavailability is an excludable time period under 

§ 29-1207(4)(d) depends upon whether it is attributable to the 

State or to the defendant. 23

At the hearing regarding Hernandez’ motion, the State argued 

that the bench warrant issued by the court stopped the speedy 

trial clock under § 29-1207(4)(d). The State speculated, “That 

warrant would have been the same warrant that [the court 

would have issued] if we had a pretrial and [Hernandez] didn’t 

appear . . . .” Realizing that this argument overlooks the State’s 

burden to notify Hernandez of his need to appear in court, the 

State does not reassert this argument on appeal. Instead, the 

State relies solely on § 29-1207(4)(a) and finds “no need to 

address . . . § 29-1207(4)(d).” 24 However, we take this opportunity to again dispel the misconception that the speedy trial 

clock automatically stops once a warrant is issued.

[11] In State v. Chapman,

 25 this court reiterated that when 

a defendant fails to appear and an arrest warrant is issued, 

the defendant is not necessarily considered absent or unavailable under § 29-1207(4)(d) for all of the time during which 

the arrest warrant was pending. 26 A criminal defendant must 

be properly notified of the need to appear in court on a given 

22 § 29-1207(4)(d).

23 Steele, supra note 14.

24 Brief for appellee at 10.

25 Chapman, supra note 2.

26 See, also, Jennings, supra note 12.
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STATE v. HERNANDEZ

Cite as 309 Neb. 299

date and time before failure to so appear can initiate a period 

of excludable time. 27 Here, the written arraignment lacked any 

such notice—a practice making it difficult or impossible for 

the State to show that a defendant was notified of the need to 

appear. We recognized a possible exception to the rule requiring notice, 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.’” 28 The 

State has the burden to prove that it used diligent efforts to 

serve the warrant. 29

Here, contrary to the court’s written order that cited a single 

continuous period of incarceration, Hernandez was incarcerated two different times—from February 21 to April 3, 2020, 

and from June 3 to a date beyond the filing of his motion. The 

bench warrant was not issued until April 16. Accordingly, the 

only period of incarceration that could arguably constitute a 

time period in which Hernandez was “absent or unavailable” 

was the later one.

However, Hernandez was not incarcerated at the time that 

the court issued the bench warrant. Yet, the State failed to serve 

the court’s bench warrant and it did not present any evidence, 

nor can it be reasonably inferred from Hernandez’ admissions, 

that the State made diligent efforts to serve the warrant on 

Hernandez when he was not incarcerated and available to be 

served. Moreover, there was no evidence that the State at any 

time lodged or attempted to lodge a detainer against Hernandez 

with any official or institution in Iowa pursuant to the interstate Agreement on Detainers. 30 Therefore, because Hernandez 

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

28 Chapman, supra note 2, 307 Neb. at 449, 949 N.W.2d at 494 (quoting 

Richter, supra note 27). See, also, Jennings, supra note 12.

29 See Chapman, supra note 2.

30 See § 29-759. See, also, State v. Williams, 253 Neb. 619, 573 N.W.2d 106 

(1997) (arrest warrant can serve as detainer).
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was not absent or unavailable under § 29-1207(4)(d), the court 

clearly erred in finding that the times of his Iowa incarceration 

were excluded.

“Other Proceedings” Exclusion

Hernandez also assigns that the court erred by finding 

excludable time under § 29-1207(4)(a). Hernandez argues that 

there was no evidence that a delay occurred in his case due 

to other pending proceedings against him. The subsection 

explains that an excludable period of time for speedy trial 

purposes may result from “other proceedings concerning the 

defendant, including, but not limited to, . . . the time consumed 

in the trial of other charges against the defendant.” 31

The State encourages us to extend our decision in State v. 

Blocher 32 and rule that the entire time that Hernandez was 

incarcerated in another state qualifies as excludable time. In 

Blocher, we determined that a portion of the time that a defendant was held in one Nebraska county pending proceedings in 

that county served as excludable time under § 29-1207(4)(a) 

for charges pending in another Nebraska county. We explained, 

“§ 29-1207(4)(a) applies to proceedings in the pending case as 

well as to proceedings in other pending cases.” 33

[12] The State would expand the term “proceeding” too 

broadly. Drawing on a legal dictionary, we have defined a 

“proceeding” for speedy trial purposes. 34 For purposes of 

§ 29-1207(4)(a), a proceeding is, in a more particular sense, 

any application to a court of justice, however made, for aid 

in the enforcement of rights, for relief, for redress of injuries, 

for damages, or for any remedial object. 35 We warned that 

“proceeding” was not to be read so broadly as to encompass 

31 § 29-1207(4)(a).

32 See Blocher, supra note 7.

33 Id. at 881, 951 N.W.2d at 504 (emphasis supplied).

34 See State v. Tamayo, 280 Neb. 836, 791 N.W.2d 152 (2010).

35 See id.
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“‘any delay at trial that “concerns” the defendant,’” because 

“‘[i]f the Legislature had intended that the term “proceeding” 

encompass such a broad purview, there would have been little 

reason for the Legislature to have provided for exclusion under 

§ 29-1207(4)(f), the “catchall provision.”’” 36

The State did not present any evidence, nor did Hernandez 

judicially admit, that there were any pending proceedings 

against Hernandez—only that he was “incarcerated in Iowa.” 

Moreover, at the hearing, Hernandez’ counsel informed the 

court that Hernandez was expected to “complete that sentence” 

in January 2021.

The expected completion date implied that any proceedings 

in Iowa regarding Hernandez had already been concluded and 

that he was incarcerated solely for the purpose of completing 

a sentence. Accordingly, the district court could not reasonably 

infer that Hernandez was incarcerated pursuant to a pending 

proceeding. It necessarily follows that the court clearly erred 

in finding that an excludable period of time existed under 

§ 29-1207(4)(a).

CONCLUSION

The State failed to bring Hernandez to trial within its 

6-month statutory deadline. The only evidence—Hernandez’ 

judicial admissions—did not prove or permit a reasonable 

inference of delay resulting from either “absence or unavailability” or “other proceedings.” The court clearly erred in overruling Hernandez’ motion for absolute discharge. We reverse 

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

to dismiss the information against Hernandez.

Reversed and remanded with directions.

36 See id. at 843-44, 791 N.W.2d at 157.