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308 Nebraska Reports

STATE v. JENNINGS

Cite as 308 Neb. 835

State 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, capricious, 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 defendant can be tried.

Nebraska Supreme Court Online Library

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

05/28/2021 08:10 AM CDT
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7. Speedy Trial: Proof. When calculating the time for speedy trial purposes, 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 appellate 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 contends only that Jennings’ sole assignment of error is unreviewable. Because we find Jennings’ assignment of error is both 
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reviewable 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 complaint 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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The 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 warrant 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 discharge, 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 trying 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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he 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 absolute 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 factual 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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the district court’s judgment. We address the State’s interpretation of McGinn as a threshold matter.

State v. McGinn

In McGinn, the defendant appealed his county court conviction 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 conviction, 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 finding 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 admissibility 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 judgment is reviewable by this court. Our holding in State v. 

Thalken[, 299 Neb. 857, 911 N.W.2d 562 (2018),] articulated 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.
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committed 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 affirmative 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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this 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 erroneous 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 necessary 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 appellee 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 district 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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only 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 fashioned it into a grammatical litmus test that would preclude 

appellate review altogether if an assignment of error is imprecisely 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, vacation, 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 contentions 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 determination. 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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from 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 consider 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 generally review appeals from the county court for error appearing 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 complaint 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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whether 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 submitted for decision and to let the State know what contentions must be met. Nothing about the way Jennings has either 

phrased or argued his assignment of error precludes appellate 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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State 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 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.” 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 calculation “[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 informations 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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or 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 determine 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 criminal 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 available 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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finding 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 defendant’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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At 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, finding 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 exception to the general rule, under which “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,’” 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 stalking 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. 835

case, 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 unavailability 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.