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State of Nebraska, appellant, 

v. Tracy L. Space, appellee.

___ N.W.2d ___

Filed September 16, 2022. No. S-21-837.

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. Statutes: Appeal and Error. Statutory interpretation presents a question of law, for which an appellate court has an obligation to reach 

an independent conclusion irrespective of the decision made by the 

court below.

3. Speedy Trial. Under Nebraska’s speedy trial 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.

4. ____. The primary burden is on the State to bring an accused person to 

trial within the time provided by law.

5. ____. 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.

6. Speedy Trial: Proof. When a motion for absolute discharge is filed, 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. 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.

8. Statutes. Statutory interpretation begins with the text, and the text is to 

be given its plain and ordinary meaning. A court will not read meaning 

Nebraska Supreme Court Online Library

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

12/09/2022 09:05 AM CST
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into a statute that is not warranted by the legislative language or read 

anything plain, direct, or unambiguous out of a statute.

9. Statutes: Intent. When interpreting a statute, a court must give effect, 

if possible, to all the several parts of a statute and no sentence, clause, 

or word should be rejected as meaningless or superfluous if it can 

be avoided.

10. Words and Phrases. A legal term of art is a word or phrase having 

a specific, precise meaning in a given specialty apart from its general 

meaning in ordinary contexts.

11. Statutes: Words and Phrases. When legal terms of art are used in statutes, they are to be construed according to their term of art meaning.

12. Speedy Trial: Words and Phrases. The term “continuance,” as used 

in Neb. Rev. Stat. § 29-1207(4)(b) (Reissue 2016), refers to the circumstance where a court proceeding set for one date is postponed to a 

future date.

13. Speedy Trial. The text of Neb. Rev. Stat. § 29-1207(4)(b) (Reissue 

2016) plainly requires that a “continuance” must be granted at the 

request or with the consent of the defendant or his or her counsel, before 

the resulting period of delay is excludable.

14. Criminal Law: Appeal and Error. Under the invited error doctrine, a 

defendant in a criminal case may not take advantage of an alleged error 

which the defendant invited the trial court to commit.

15. Criminal Law: Speedy Trial: Waiver. A criminal defendant’s failure 

to demand a trial within the 6-month statutory speedy trial period, or to 

object to a trial date set beyond such period, does not constitute a waiver 

of his or her speedy trial rights.

Appeal from the District Court for Buffalo County: Ryan C. 

Carson, Judge. Exception overruled.

Shawn R. Eatherton, Buffalo County Attorney, and Kari R. 

Fisk for appellant.

Lydia Davis, Buffalo County Public Defender, for appellee.

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

Papik, and Freudenberg, JJ.

Stacy, J.

During a scheduling hearing in a felony criminal case, the 

district court proposed a trial date and asked defense counsel, 

“does that work?” to which counsel replied, “Yes, thank you.” 
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The court then scheduled trial for that date. No one mentioned 

speedy trial during the scheduling hearing, but it is undisputed 

that the proposed trial date was more than 6 months after the 

date the information was filed.

Shortly before the scheduled trial date, the defendant moved 

for absolute discharge, asserting she had not been brought to 

trial before the running of the 6-month speedy trial period 

under Neb. Rev. Stat. § 29-1207 (Reissue 2016). The district 

court granted absolute discharge, and the State filed this exception proceeding.

The State’s primary argument is that by agreeing to an initial 

trial date that was outside the 6-month statutory speedy trial 

period, the defendant consented to an excludable “period of 

delay resulting from a continuance granted” within the meaning of § 29-1207(4)(b). Alternatively, the State argues the 

defendant “invit[ed] the Court to commit error in scheduling” 1

and should not have been allowed to rely on such error to 

obtain absolute discharge. Finding no merit to the State’s arguments, we overrule the exception.

BACKGROUND

In a two-count information filed on March 5, 2021, Tracy 

L. Space was charged with aggravated driving under the influence, third offense (a Class IIIA felony), and refusal to submit 

to a preliminary breath test (a Class V misdemeanor). On 

March 9, Space filed a motion for discovery, which the court 

granted in an order entered the following day.

On March 25, 2021, the court entered a progression order 

setting arraignment for May 24, and a “final plea hearing” for 

July 22. The progression order stated that “[a]t the conclusion 

of the final plea hearing . . . the Court will schedule trial.” 

Before the scheduled arraignment on May 24, Space filed a 

written waiver of arraignment and entered a plea of not guilty.

All parties appeared for the final plea hearing on July 22, 

2021, during which the following exchange took place:

1 Brief for appellant at 8.
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THE COURT: . . . We are set for final plea/pretrial. 

[Defense counsel], what is the status?

[Defense counsel:] She is asking — she’s standing on 

her not guilty plea, Your Honor.

THE COURT: September 20, 2021, for jury trial; does 

that work?

[Defense counsel:] Yes. Thank you.

THE COURT: We’ll set the matter also for final status 

hearing the Friday before, September 17th at 11:30 a.m. 

Does that also work?

[Defense counsel:] Yes. Thank you.

THE COURT: Ms. Space, we’re going to set your 

matter for jury trial on September 20, 2021, at 9 a.m., 

and also for a final status hearing the Friday before, 

September 17th at 11:30 a.m. It’s important that you be 

here on both times; do you agree to do that?

DEFENDANT: Yes, Your Honor.

THE COURT: [Defense counsel], I’ll ask that you 

write those dates and times down for Ms. Space so she 

doesn’t forget.

Ms. Space, you need to understand that today was the 

deadline for discovery and also the deadline to [accept 

any] plea offers that may be made by the State. Absent a 

showing of good cause, the matter will proceed to trial at 

your request; do you understand that?

DEFENDANT: Yes, Your Honor.

THE COURT: The Court will allow you to remain out 

on your current bond, subject to all the terms and conditions; do you understand?

DEFENDANT: Yes, Your Honor.

THE COURT: And do you have any questions for me?

DEFENDANT: No, Your Honor.

THE COURT: [Defense counsel], anything else?

[Defense counsel:] No. Thank you.

THE COURT: [Counsel for the State]?

[Counsel for the State:] No, Your Honor.
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The issue of speedy trial was not raised or discussed when 

the trial date was selected, nor at any other point during the 

final plea hearing. After the hearing, the court entered an order, 

styled as a journal entry, memorializing the dates set for the 

final status hearing and trial.

On September 13, 2021, Space filed a motion for absolute 

discharge, asserting a violation of both her statutory and constitutional speedy trial rights. At the hearing on Space’s motion, 

the court took judicial notice of the information, the progression order, Space’s written not guilty plea, the journal entry 

memorializing the trial date, and the remainder of the court 

file. The State offered a transcript of the July 22 hearing into 

evidence, which the court received without objection.

The court then gave counsel an opportunity to present argument, beginning with the defense. Defense counsel argued that 

Space was entitled to absolute discharge because the State 

failed to bring her to trial within 6 months of the date the 

information was filed and because she had not waived her right 

to a speedy trial. Anticipating the State’s argument, defense 

counsel urged:

[I]t is improper . . . to allege that some type of responsibility was on the defendant because that’s simply not the 

case. It’s not the defendant’s burden to notify the Court 

of the speedy trial date, and quite frankly, it’s not the 

Court’s burden either. According to the law, the duty is 

on the county attorney, it’s on the State, to bring a person 

to trial, again, within six months of the filing of the trial 

information.

. . . I would remind the Court that at no time in this 

case did Ms. Space ask for a continuance. At the final 

plea hearing she simply stood on her not guilty plea at 

that time. I would submit to the Court that that was not a 

request for a continuance because, quite frankly, it wasn’t. 

There was no evidence that she wasn’t immediately ready 

for trial.

The State urged the court to overrule the motion for discharge, 

reasoning that Space’s acceptance of the September 20, 2021, 
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trial date rendered the period between the July 22 hearing 

and September 20 excludable under § 29-1207(4)(b). The 

State argued:

A period of delay resulting from a continuance granted 

at the request or with the consent of the defendant — or 

of his or her counsel is what the State’s relying on here, 

Your Honor.

. . . .

So when the Court sets that date and the Court asks 

[defense counsel] if that’s okay, I don’t know that it 

would be appropriate for the State at that point to try to 

overrule defense counsel in picking that particular date 

because perhaps there were strategic reasons she would 

want to have it on [September] 20th. . . .

Regardless of the subjective reasons for why [defense 

counsel] said [September 20] would work, the objective 

fact is that the period of time from July 22nd through 

September 20th, in the State’s view, was a mutually 

agreed upon trial date by and through defense counsel 

. . . with the consent of defense counsel; and therefore, 

under [§] 29-1207(4)(b), an excludable period up through 

September 20th, meaning, then, that the motion for discharge was filed in a time period that the speedy trial 

clock had not run. So the motion for discharge in the 

State’s view should be overruled, Judge.

The court took the matter under advisement.

Thereafter, the court entered an order granting Space’s 

motion for absolute discharge. It found the 6-month speedy 

trial period had run on September 6, 2021, and it expressly 

rejected the State’s argument that by agreeing to the September 

20 trial date, Space had consented to a “continuance” of trial. 

It reasoned:

[T]he cases [the State] referenced all involved requests 

for a continuance, as opposed to initial trial settings. 

See State v. Curry, 18 Neb. App. 284, 790 N.W.2d 441 

(2010); State v. Turner, 252 Neb. 620, 564 N.W.2d 231 

(1997). Moreover, the Nebraska Supreme Court addressed 
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this issue more specifically in State v. Alvarez, 189 Neb. 

281, 291-92, 202 N.W.2d 604, 610 (1972), wherein it 

concluded that the “failure by a defendant to demand a 

trial within the time he is required to be brought to trial 

. . . or to object at the time trial date is set does not constitute a waiver of his rights[.]” The Court further noted 

that “[p]revious holdings of this court that failure of the 

accused to demand trial constitutes a waiver of the statutory right are overruled[.]” Id. (citing Barker v. Wingo, 

407 U.S. 514 (1972)). While the Court further noted that 

the defendant’s inaction may be considered along with 

other circumstances when determining whether “good 

cause” exists, it cannot alone constitute good cause. Id.

No additional evidence of “good cause” was offered in 

this matter.

Presumably because the motion for absolute discharge was 

granted on statutory grounds, the court’s order did not address 

Space’s constitutional speedy trial claim. The State was granted 

leave to docket this exception proceeding pursuant to Neb. 

Rev. Stat. § 29-2315.01 (Cum. Supp. 2020). We moved the 

matter to our docket on our own motion.

ASSIGNMENT OF ERROR

The State assigns that the district court erred in granting 

Space’s motion for absolute discharge.

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. 2 But statutory interpretation presents a question of 

law, for which an appellate court has an obligation to reach an 

independent conclusion irrespective of the decision made by 

the court below. 3

2 State v. Abernathy, 310 Neb. 880, 969 N.W.2d 871 (2022).

3 State v. Chase, 310 Neb. 160, 964 N.W.2d 254 (2021).
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ANALYSIS

Statutory Speedy Trial Principles

[3] The sole question presented is whether the district court 

erred in granting Space’s motion for absolute discharge on statutory speedy trial grounds. The statutory right to a speedy trial 

is set out in § 29-1207 and Neb. Rev. Stat. § 29-1208 (Reissue 

2016). 4 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. 5 The 

excludable periods are set out in § 29-1207(4)(a) through (f). 

In this case, the State’s primary argument rests on the excludable time period set out in subsection (4)(b) of § 29-1207, 

which provides:

(4) The following periods shall be excluded in computing the time for trial:

. . . .

(b) The period of delay resulting from a continuance 

granted at the request or with the consent of the defendant 

or his or her counsel. . . . A defendant is deemed to have 

waived his or her right to speedy trial when the period of 

delay resulting from a continuance granted at the request 

of the defendant or his or her counsel extends the trial 

date beyond the statutory six-month period.

[4-6] We have long recognized that the primary burden is 

on the State to bring an accused person to trial within the time 

provided by law. 6 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. 7 When a motion for absolute discharge 

is filed, the State bears the burden to show, by the greater 

4 See Abernathy, supra note 2.

5 Id.

6 State v. Coomes, 309 Neb. 749, 962 N.W.2d 510 (2021).

7 Abernathy, supra note 2.
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weight of the evidence, that one or more of the excluded time 

periods under § 29-1207(4) are applicable. 8

[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. 9 In this case, the information was filed March 5, 2021, 

so absent any excludable time, the State had until September 5, 

2021, to bring Space to trial.

The district court found there was 1 excludable day resulting 

from Space’s motion for discovery, which was filed on March 

9, 2021, and granted the next day. 10 Accounting for this single 

excluded day, the court determined the statutory speedy trial 

period expired on September 6. Space filed her motion for 

absolute discharge approximately 1 week later, on September 

13. After concluding the State had proved no excludable time 

other than the 1 day related to Space’s discovery motion, the 

district court granted absolute discharge.

In this exception proceeding, the State contends the district court erred by not also excluding the time period from 

July 22 to September 20, 2021. In doing so, it presents two 

theories. First, the State suggests that when Space’s counsel 

agreed to the September 20 trial date, the period of time leading up to that date became excludable under § 29-1207(4)(b) 

as a “period of delay resulting from a continuance granted at 

the request or with the consent of the defendant or his or her 

counsel.” Alternatively, the State argues that by accepting the 

September 20 trial date, Space “invit[ed] the Court to commit 

error,” 11 and she should not have been allowed to rely on such 

8 See Coomes, supra note 6.

9 State v. Gnanaprakasam, 310 Neb. 519, 967 N.W.2d 89 (2021).

10 See State v. Washington, 269 Neb. 728, 695 N.W.2d 438 (2005). See, also, 

State v. Covey, 267 Neb. 210, 217, 673 N.W.2d 208, 213 (2004) (final 

disposition under § 29-1207(4)(a) occurs on date motion is “‘granted or 

denied’”).

11 Brief for appellant at 8.
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error to support absolute discharge. We consider each argument 

in turn, and ultimately, we reject them both.

Period of Delay Resulting From 

Continuance Granted

The State argues that the period between July 22 and 

September 20, 2021, was excludable under § 29-1207(4)(b) 

as a “period of delay resulting from a continuance granted at 

the request or with the consent of the defendant or his or her 

counsel.” Space responds that § 29-1207(4)(b) does not apply 

because this case did not involve the granting of a “continuance,” but, rather, involved the initial setting of a trial date. 

The parties’ competing positions present a question of statutory 

interpretation regarding the meaning of the term “continuance” 

as used in § 29-1207(4)(b).

Our cases have not expressly defined the term “continuance,” presumably because the term is so commonplace in 

legal vernacular that ordinarily there is no confusion surrounding its meaning. As observed by the Nebraska Court of 

Appeals, “[I]f it looks like a continuance and sounds like a 

continuance, it is a continuance.” 12 But to analyze whether the 

State is correct that the period of delay between July 22 and 

September 20, 2021, resulted from a “continuance,” we must 

first determine the meaning of that term.

According to the State, a “continuance” under § 29-1207(4)(b) 

means “any delay or postponement of the 6-month statutory 

period that has been requested by or consented to by the 

defendant or defense counsel.” 13 We disagree with the State’s 

interpretation.

[8,9] Statutory interpretation begins with the text, and the 

text is to be given its plain and ordinary meaning. 14 A court 

12 State v. Craven, 17 Neb. App. 127, 134, 757 N.W.2d 132, 137 (2008) 

(rejecting contention that defense counsel’s request to “reset” hearing was 

not request to “continue” hearing within meaning of § 29-1207(4)(b)).

13 Brief for appellant at 11 (emphasis omitted).

14 Nebraska Republican Party v. Shively, 311 Neb. 160, 971 N.W.2d 128 

(2022).
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will not read meaning into a statute that is not warranted by 

the legislative language or read anything plain, direct, or unambiguous out of a statute. 15 When interpreting a statute, a court 

must give effect, if possible, to all the several parts of a statute 

and no sentence, clause, or word should be rejected as meaningless or superfluous if it can be avoided. 16

[10,11] These settled principles guide our analysis, but we 

also observe that the term “continuance” is a legal term of art. 

A legal term of art is a word or phrase having a specific, precise meaning in a given specialty apart from its general meaning in ordinary contexts. 17 When legal terms of art are used 

in statutes, they are to be construed according to their term of 

art meaning. 18

[12] Black’s Law Dictionary defines “continuance” as the 

“adjournment or postponement of a trial or other proceeding to a future date.” 19 This definition is generally consistent 

with our cases applying the continuance provision found in 

the first sentence of § 29-1207(4)(b), 20 and such a definition 

necessarily presumes that before there can be a “continuance” 

of a proceeding, there must have been an initial setting. Stated 

differently, “continuance,” as it is used in § 29-1207(4)(b), 

15 See, id.; State v. Liming, 306 Neb. 475, 945 N.W.2d 882 (2020).

16 State v. Amaya, 305 Neb. 36, 938 N.W.2d 346 (2020).

17 Stone Land & Livestock Co. v. HBE, 309 Neb. 970, 962 N.W.2d 903 

(2021); State ex rel. Peterson v. Creative Comm. Promotions, 302 Neb. 

606, 924 N.W.2d 664 (2019).

18 Id.

19 Black’s Law Dictionary 400 (11th ed. 2019).

20 See, e.g., Coomes, supra note 6, 309 Neb. at 754, 962 N.W.2d at 516 

(finding consent for continuance under § 29-1207(4)(b) when State orally 

moved to continue matter for further status hearing “‘a month down the 

road,’” and defense counsel said “‘Judge, that’s fine with me’”); Liming,

supra note 15 (finding continuance under § 29-1207(4)(b) when State 

asked to continue court-ordered settlement conference to future date and 

defendant agreed); State v. Lovvorn, 303 Neb. 844, 932 N.W.2d 64 (2019) 

(finding continuance under § 29-1207(4)(b) when defendant moved to 

continue pretrial hearing to future date).
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does not broadly refer to the continuous passage of time. 

Instead, we hold that “continuance” refers to the circumstance 

where a court proceeding set for one date is postponed to a 

future date.

We thus reject the State’s invitation to construe 

§ 29-1207(4)(b) to apply to any period of delay granted with 

the consent of the defendant or defense counsel. The State’s 

construction would effectively read the phrase “continuance 

granted” out of the statutory text and would allow the trial 

court to stop the speedy trial clock between court appearances 

simply by asking whether the next scheduled appearance is 

agreeable to the defense.

[13] The text of § 29-1207(4)(b) plainly requires that a 

“continuance” must be granted at the request or with the consent of the defendant or his or her counsel, before the resulting 

period of delay is excludable. No continuance was granted in 

this case.

During the July 22, 2021, hearing, defense counsel consented to setting the initial trial date on September 20, but prior 

to that hearing, there was no scheduled trial date, so counsel 

was not consenting to a continuance of trial or any other previously scheduled matter. Consequently, the time period between 

the July 22 hearing and the September 20 trial date was not a 

“period of delay resulting from a continuance granted at the 

request or with the consent of the defendant or his or her counsel” and was not excludable under § 29-1207(4)(b).

For the sake of completeness, we also reject any suggestion that Space’s consent to the initial trial date implicated the waiver provision contained in the last sentence of 

§ 29-1207(4)(b). That sentence provides: “A defendant is 

deemed to have waived his or her right to speedy trial when 

the period of delay resulting from a continuance granted at the 

request of the defendant or his or her counsel extends the trial 

date beyond the statutory six-month period.” 21 Interpreting 

this language, we have said, “‘[I]f a defendant requests a 

21 § 29-1207(4)(b).
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continuance that moves a trial date which has been set within 

the statutory 6-month period to a date that is outside the 

6-month period, that request constitutes a permanent waiver of 

the statutory speedy trial right.’” 22 But here, the waiver provision of § 29-1207(4)(b) was inapplicable, because Space consented to an initial trial date set outside the 6-month period; 

she did not request to continue a trial date that was originally 

set within the statutory period. 23 There may be a compelling 

policy argument that a defendant who accepts an initial trial 

date outside the statutory 6-month period is acting in a way 

that is fundamentally inconsistent with asserting his or her 

statutory speedy trial rights and should therefore be understood to have waived these rights. But expanding the statutory 

waiver provision to address such a scenario is a policy matter 

properly left to the Legislature.

Invited Error Doctrine

[14] The State’s alternative argument relies on the invited 

error doctrine. Under that doctrine, “[a] defendant in a criminal case may not take advantage of an alleged error which the 

defendant invited the trial court to commit.” 24

The State argues that Space invited the trial court to commit 

error by agreeing to an initial trial date set outside the 6-month 

speedy trial period. Space responds that she did not “invite” 

the court to commit a scheduling error, generally noting it was 

the judge who proposed the initial trial date, and further noting 

22 State v. Riessland, 310 Neb. 262, 266-67, 965 N.W.2d 13, 16 (2021), 

quoting State v. Mortensen, 287 Neb. 158, 841 N.W.2d 393 (2014).

23 See State v. Gill, 297 Neb. 852, 901 N.W.2d 679 (2017).

24 State v. Gutierrez, 260 Neb. 1008, 1013, 620 N.W.2d 738, 742 (2001). 

See, also, State v. Brock, 245 Neb. 315, 318, 512 N.W.2d 389, 391 (1994) 

(“[w]e decide this case on the basis that a defendant in a criminal case 

may not take advantage of an alleged error which defendant invited the 

court to commit”); State v. Zima, 237 Neb. 952, 956, 468 N.W.2d 377, 

380 (1991) (“[i]t is a well-established principle of appellate practice that 

a party cannot complain of error which he or she invited the trial court 

to commit”).
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the defendant has no duty to object on speedy trial grounds 

when the court sets a trial date outside the 6-month speedy 

trial period. 25

We find no merit to the State’s suggestion that the doctrine 

of invited error should have either estopped Space from moving for absolute discharge or precluded the court from granting 

absolute discharge. As an initial matter, we question whether 

the invited error issue is properly before us, as it is not clear 

the issue was expressly presented to and considered by the district court. 26 But even assuming the issue of invited error was 

properly preserved for appellate review, we are not persuaded 

it has any application in this case.

First, it is debatable what role, if any, principles like the 

invited error doctrine should play in our statutory speedy trial 

analysis. The statutory scheme mandated by the Legislature 

establishes when the speedy trial period begins to run, how 

that period is to be computed, which periods of delay are 

excludable, when a defendant is entitled to absolute discharge, 

and when a defendant is deemed to have waived the statutory 

right to speedy trial. This statutory scheme contains no provision permitting excludable time to arise as a result of invited 

error, nor does it contain any provision forbidding a defendant from moving for absolute discharge if that defendant 

has “invited” a speedy trial violation. And because it is not 

the proper role of the courts to modify the statutory speedy 

trial scheme through judicial construction, 27 we question the 

25 See State v. Alvarez, 189 Neb. 281, 202 N.W.2d 604 (1972).

26 See State v. Thomas, 303 Neb. 964, 982, 932 N.W.2d 713, 727 (2019) 

(“[a]n appellate court will not consider an issue on appeal that was not 

presented to or passed upon by the trial court”).

27 See State v. Kinstler, 207 Neb. 386, 299 N.W.2d 182 (1980) (explaining 

that courts have no discretion to ignore provisions in §§ 29-1207 and 

29-1208). See, also, State v. Williams, 277 Neb. 133, 139, 761 N.W.2d 

514, 521 (2009) (recognizing courts will not “change the law because of 

what the State perceives as abuse by criminal defendants” in speedy trial 

context); Williams, supra note 27 (Wright, J., concurring) (fixing flaws in 

statutory speedy trial scheme is proper task for Legislature, not courts).
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propriety of using the invited error doctrine to circumvent 

the absolute discharge and waiver provisions established by 

the Legislature.

But this case does not require us to decide whether the 

invited error doctrine could ever apply to prevent absolute 

discharge under the speedy trial statutes. Because even if the 

doctrine could be used as the State suggests, this record would 

not support a finding that Space “invited” the court to commit 

error in setting the trial date.

At the final plea hearing, Space’s counsel advised the court 

that her client was standing on her plea of not guilty. The court 

reasonably understood this to mean it would be necessary to 

set a trial date. But there is nothing in our record suggesting 

that Space requested a specific trial date, and certainly nothing 

suggesting that she requested a trial date outside the statutory 

6-month period. Nor can we infer such a request from the colloquy between the court and defense counsel regarding the 

proposed trial date.

When the court asked “September 20, 2021, for jury trial; 

does that work?” it was asking a scheduling question, not a 

speedy trial question. And when defense counsel responded, 

“Yes. Thank you,” she was answering that scheduling question. 

Defense counsel was neither commenting on the speedy trial 

calculation nor agreeing not to move for absolute discharge 

once the 6-month period expired. At least for purposes of the 

invited error doctrine, we find it significant that the issue of 

speedy trial was not raised, expressly or impliedly, when the 

court was proposing a trial date.

We pause here to observe that if the issue of speedy trial had 

been expressly raised by either the State or the trial court during the scheduling discussion, then the series of events which 

culminated in absolute discharge could have been averted. A 

discussion of speedy trial would presumably have alerted the 

court to the fact that the trial date it was proposing was beyond 

the 6-month deadline. The court could then have explored with 

Space whether she was willing to freely and voluntarily waive 

speedy trial until the September 20, 2021, date. If she was not, 
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the court could have set trial for a date within the 6-month 

speedy trial period.

[15] Finally, we reject the State’s suggestion that defense 

counsel “manipulate[d] the Court” 28 by agreeing to a trial date 

that was plainly outside the speedy trial period. It is true that 

both the prosecutor and the defense counsel owe a duty of 

candor to the court, 29 and here, neither attorney advised the 

court that the trial date it proposed was outside the 6-month 

speedy trial period. But our cases do not require a defendant 

to either demand a speedy trial or object to a trial date on 

such grounds. 30 As we recognized long ago, a criminal defendant’s failure to demand a trial within the 6-month statutory 

speedy trial period, or to object to a trial date set beyond such 

period, does not constitute a waiver of his or her speedy trial 

rights. 31 And here, it is notable that the information necessary 

to calculate the speedy trial deadline was equally available to 

the court and the prosecutor. On this record, we cannot find 

that defense counsel manipulated the court or misrepresented 

any material fact regarding the speedy trial clock. Instead, we 

question why the State did not alert the trial court to the fact 

that the proposed trial date fell outside the 6-month speedy 

trial period.

We have long recognized the State has the primary burden 

of bringing an accused person to trial within the time provided by law. 32 And the Legislature has made it “the duty of 

the county attorney to bring to the attention of the trial court” 

any cases entitled to preferential treatment under the speedy 

trial statutes. 33 It follows, then, that in addition to carefully 

28 Brief for appellant at 8.

29 See Neb. Ct. R. of Prof. Cond. § 3-503.3 (rev. 2016) (providing that 

lawyers shall not knowingly make false statements to tribunal or fail to 

correct false statement of material fact or law made to tribunal by lawyer).

30 Alvarez, supra note 25.

31 Id.

32 State v. Hernandez, 309 Neb. 299, 959 N.W.2d 769 (2021).

33 See Neb. Rev. Stat. § 29-1205 (Reissue 2016).
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monitoring the speedy trial deadline, the prosecution should 

promptly bring to the trial court’s attention any potential concerns regarding the defendant’s right to a speedy trial.

On this record, the trial court correctly found there was just 

1 day of excludable time under § 29-1207(4), and it correctly 

concluded the State failed to bring Space to trial before the 

running of the 6-month speedy trial period. Under § 29-1208, 

Space was entitled to absolute discharge.

CONCLUSION

For the foregoing reasons, the exception is overruled.

Exception overruled.

Freudenberg, J., dissenting.

I respectfully dissent from the majority opinion based upon 

the reasoning in my concurring opinions in State v. Coomes, 

309 Neb. 749, 962 N.W.2d 510 (2021), and State v. Bixby, 311 

Neb. 110, 971 N.W.2d 120 (2022). Through judicial construction, this court has improperly created a statutory speedy trial 

scheme that is unsupported by the language of the relevant 

statutes. The majority opinion in this matter further expands 

the application of such improperly created scheme.

To fully understand the genesis of our judicially created 

speedy trial scheme, we must recall situations represented by 

cases like that decided by the U.S. Supreme Court in Barker 

v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 

(1972). In that matter, a Kentucky prosecuting authority did 

not bring a murder suspect to trial for more than 5 years after 

his arrest. The significant delay was due in large part to tactical continuances sought by the prosecutors. This and similar 

situations refocused federal and state judiciaries upon the 

meaningful enforcement of constitutional speedy trial rights. 

It further spurred state legislatures to pass statutory speedy 

trial legislation.

In 1971, Nebraska passed 1971 Neb. Laws, L.B. 436, creating the State’s first statutory speedy trial right which was 

separate and distinct from existing constitutional speedy trial 
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provisions. Since that time, only a few revisions to the statutory framework have occurred, none of which are material to 

this matter or the basis of this dissent.

The Nebraska statutory speedy trial scheme is set forth in 

Neb. Rev. Stat. §§ 29-1201 through 29-1209 (Reissue 2016 

& Cum. Supp. 2020). The nuts and bolts of the speedy trial 

scheme are found in § 29-1207, which states:

(1) Every person indicted or informed against for any 

offense shall be brought to trial within six months, and 

such time shall be computed as provided in this section.

(2) Such six-month period shall commence to run from 

the date the indictment is returned or the information 

filed . . . .

(3) If a defendant is to be tried again following a mistrial, an order for a new trial, or an appeal or collateral 

attack, such period shall commence to run from the date 

of the mistrial, order granting a new trial, or the mandate 

on remand.

Subsection (4) of § 29-1207 sets forth a number of events 

which create periods of excludable time under the statutory 

speedy trial calculations.

Section 29-1208 creates the remedy of “absolute discharge” 

if a defendant is not brought to trial within the 6-month period 

established in § 29-1207, as “extended by excluded periods.” 

Section 29-1205 directs the trial courts to give preference to 

criminal cases over civil cases in its trial settings and directs 

county attorneys “to bring to the attention of the trial court 

any cases falling within this subdivision, and he [or she] shall 

generally advise the court of facts relevant in determining the 

order of cases to be tried.”

The first time this court interpreted the new statutory speedy 

trial scheme was in State v. Alvarez, 189 Neb. 281, 202 N.W.2d 

604 (1972). In Alvarez, the defendant’s trial was set more 

than 6 months after the applicable statutory starting point of 

the speedy trial clock. The record was “completely silent as 

to what, if anything, occurred between the court, defendant, 

and his counsel at the time the order setting the trial date was 
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entered.” Id. at 285, 202 N.W.2d at 607. The defendant moved 

for absolute discharge pursuant to § 29-1208 after expiration 

of the applicable 6-month period. A hearing was held, and 

the court found that “‘good cause’” existed for the court’s 

delayed trial setting. Alvarez, 189 Neb. at 286, 202 N.W.2d 

at 607. Pursuant to the excludable periods established under 

§ 29-1207(4), “good cause” could be the basis for “[o]ther 

periods of delay not specifically enumerated” in that section.

The defendant in Alvarez ultimately appealed the trial court’s 

ruling to this court, which upheld the trial court’s finding of 

good cause in affirming the defendant’s conviction. In doing 

so, this court took the opportunity to address several issues 

relating to Nebraska’s recently passed speedy trial statutes. 

This court established that “[t]he primary burden is upon the 

State, that is, the prosecutor and the court, to bring the accused 

person to trial within the time provided by law.” Id. at 291, 

202 N.W.2d at 610. This court also placed the burden of proof 

upon the prosecution to prove the existence of one or more of 

excludable periods of time provided for by § 29-1207(4). See 

Alvarez, supra.

However, this court then went well beyond what was 

required for the establishment of necessary procedures to affect 

the reasonable application of this new statutory speedy trial 

scheme when discussing what does and does not constitute a 

defendant’s waiver of the statutory right to absolute discharge. 

Our discussion of waiver was unmoored from the relevant 

statutory language and inconsistent with this court’s recognized 

implementation of “waiver” principles applicable to other statutorily created rights.

In the Alvarez opinion, this court identified one of the issues 

to be addressed as follows: “When the trial court sets a trial 

date which is more than 6 months after the filing of the information, must the defendant immediately take exception thereto, 

or may he wait for the 6-month period to elapse and then file 

a motion for discharge?” Id. at 287-88, 202 N.W.2d at 608. In 

answering, this court stated:
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A failure by a defendant to demand a trial within the time 

he [or she] is required to be brought to trial as provided 

by sections 29-1205 to 29-1209, R. S. Supp., 1971, or to 

object at the time trial date is set does not constitute a 

waiver of [the defendant’s] rights under either the statutes 

or the Constitution of Nebraska, but is a factor which, 

while not constituting good cause by itself, may be considered along with other circumstances in determining 

whether there was “good cause” for a delay . . . .

State v. Alvarez, 189 Neb. 281, 291-92, 202 N.W.2d 604, 610 

(1972).

This court cited Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 

2182, 33 L. Ed. 2d 101 (1972), to support that position. Barker

placed “the primary burden on the courts and the prosecutors 

to assure that cases are brought to trial.” 407 U.S. at 514. 

Further, the Court in Barker pointed out that a defendant’s 

constitutional speedy trial right is not viewed in the same manner as other fundamental constitutional rights when weighing a 

defendant’s inaction to enforce such right:

We reject, therefore, the rule that a defendant who fails 

to demand a speedy trial forever waives [the] right. 

This does not mean, however, that the defendant has no 

responsibility to assert [the] right. We think the better rule 

is that the defendant’s assertion of or failure to assert [the] 

right to a speedy trial is one of the factors to be considered in an inquiry into the deprivation of the right.

407 U.S. at 528. Later, in discussing the “defendant’s responsibility to assert [the] right,” the Barker Court stated:

The defendant’s assertion of [the] speedy trial right, then, 

is entitled to strong evidentiary weight in determining 

whether the defendant is being deprived of the right. We 

emphasize that failure to assert the right will make it difficult for a defendant to prove that he [or she] was denied 

a speedy trial.

407 U.S. at 531-32.

Even though the U.S. Supreme Court in Barker was clearly 

reviewing a fundamental right under the Constitution rather 
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than a statutory right, it presented a more balanced approach 

than that adopted by this court in Alvarez, supra, for a statutorily created right. By describing in Alvarez the failure to assert 

the speedy trial right as only a consideration of unspecified 

weight in a good cause analysis, rather than a consideration of 

strong evidentiary weight that will make it difficult to prove 

the denial of the right, this court in Alvarez relieved a defendant of a duty to assert the right to an extent that is inconsistent with Barker.

This approach to a defendant’s failure to assert the speedy 

trial right is especially untenable in the context of a statutory 

right to speedy trial. The 6-month statutory speedy trial right 

is separate from the constitutional speedy trial right. State v. 

Lee, 282 Neb. 652, 807 N.W.2d 96 (2011). Thus, for example, 

outside the lens of ineffective assistance claims, the statutory 

right to a speedy trial is not cognizable in a postconviction 

proceeding, because the statutory speedy trial right is not a 

constitutional right. Id. Thus, not only did we misunderstand 

Barker, but our reliance on Barker was wholly misplaced. We 

must construe the statutory speedy trial scheme the same way 

we would any other set of statutory rights. Our holdings in this 

case and its primogenitors are directly contrary to the plain 

language of the speedy trial statutes and the traditional notions 

of waiver that the Legislature would have considered when 

drafting the statutory language.

We have long held that statutory rights are within the 

classification of those rights that can be waived by silence 

or acquiescence. State v. Meers, 257 Neb. 398, 598 N.W.2d 

435 (1999); Sedlacek v. State, 147 Neb. 834, 25 N.W.2d 533 

(1946). Even when statutory rights relate in some way to constitutional rights, silence or inaction can traditionally waive 

those rights.

Thus, by failing to make a challenge for cause, a defendant 

can waive objections to the competency of a juror. See Fillion 

v. State, 5 Neb. 351 (1877). By remaining silent and failing 

to object, a defendant can waive the introduction of evidence 
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unconstitutionally obtained and used against the defendant 

at trial. See State v. Howard, 182 Neb. 411, 155 N.W.2d 339 

(1967). By failing to object, a defendant can waive prosecutorial misconduct and the impartiality of a judge due to ex parte 

communications. See, State v. Watt, 285 Neb. 647, 832 N.W.2d 

459 (2013), disapproved on other grounds, State v. Vann, 306 

Neb. 91, 944 N.W.2d 503 (2020); State v. Lotter, 255 Neb. 

456, 586 N.W.2d 591 (1998), modified on denial of rehearing 255 Neb. 889, 587 N.W.2d 673 (1999). Through silence, 

a defendant can waive the unconstitutionality of a charging 

statute. A defendant’s failure to object can waive the right to 

confrontation. See State v. Nadeem, 284 Neb. 513, 822 N.W.2d 

372 (2012). A defendant’s failure to object waives alleged violations of procedural due process. Id.

In this context, we have generally said that the “‘[d]efense 

may not remain silent in hopes that trial court will fall into 

reversible error where possible error could have been passed 

upon and cured, if need be, by a properly timed objection.’” 

State v. Howard, 182 Neb. at 418, 155 N.W.2d at 344. In 

State v. Leon-Simaj, 300 Neb. 317, 329, 913 N.W.2d 722, 731 

(2018), we condemned the use of silence as a constitutional 

sword of gamesmanship:

[W]e have rejected defendants’ use of constitutional 

shields as swords of gamesmanship. Particularly, we have 

found that defendants who remain silent in the face of 

trial error impacting important constitutional rights, and 

who gamble on a favorable outcome or raise the objection 

only once the alleged error can no longer be remedied, 

have waived the error.

We also explained in Leon-Simaj how silence can give the 

“false impression of acquiescence [and thereby] lull the court 

into taking actions that could not later be undone.” 300 Neb. at 

329-30, 913 N.W.2d at 731 (internal quotation marks omitted).

This court’s position in State v. Alvarez, 189 Neb. 281, 202 

N.W.22d 604 (1972), and its progeny promotes gamesmanship 

by encouraging the defense to remain silent in the hopes that 
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the court will not realize any small miscalculation that could 

lead to statutory absolute discharge—an error that cannot later 

be undone. Indeed, the scheme this court shaped in Alvarez

places defense counsel in a difficult position when a court sets 

an untimely trial date and asks for counsel’s input. Defense 

counsel must choose between properly exercising a party’s 

expected duty of candor to the court and doing what might be 

most beneficial for the defendant by giving a false impression 

of acquiescence in the hopes that the miscalculation will continue to go unnoticed.

In no way do I suggest that counsel for the defense in the 

case at bar intentionally misled the court or acted inappropriately under the scheme that this court has created. My point, 

however, is that with the scheme this court has created, even 

if defense counsel knows that the date set by the trial court is 

beyond the statutory 6-month limit, there is no duty to advise 

the court of the error so a timely trial date can be set. Instead, 

the opposite is true; our statutory speedy trial scheme discourages candor and arguably even makes raising a speedy trial 

objection before the statutory period has run a potential subject 

of ineffective assistance claims.

Such a system is contrary to what we expect from attorneys 

appearing before our courts. Without justification, it encourages gamesmanship that procedurally derails our criminal justice system from reaching the merits of the defendant’s guilt 

or innocence.

The more reasonable approach would be the application 

of the waiver principles that govern other statutorily created 

rights, as previously set forth. When the court sets a trial date, 

the defense’s failure to timely assert that the date falls outside 

of the statutory 6-month period should constitute a waiver of 

the statutory right to absolute discharge based on that trial date. 

This still empowers criminal defendants to make demands for 

trials within the 6-month time limit but does not turn criminal 

proceedings into a game of “gotcha” by defendants not asserting the statutory right to speedy trial until after the expiration 
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of the speedy trial time limit. The language of the speedy trial 

statutes clearly created a right for criminal defendants to push 

proceedings forward to trial if they wish to do so. This court 

has twisted that right into a procedural trap for trial courts.

Until recently, because either the record was silent on the 

issue, see State v. Alvarez, 189 Neb. 281, 202 N.W.2d 604 

(1972), or the issue simply had not been raised, a defendant’s 

participation in setting a trial date had not been evaluated under 

our statutory speedy trial scheme. Such issue has been squarely 

raised here, and the majority opinion moves our flawed system 

one step further in the wrong direction.

Here, the defendant and her counsel were present when the 

court discussed the trial date with the parties and they agreed 

to a trial date that fell outside of the allowable speedy trial time 

limit. After the statutory time limit had passed but before the 

agreed-upon trial date, the defendant filed a motion for absolute discharge, which was granted. Even under a constitutional 

analysis as used in Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 

2182, 33 L. Ed. 2d 101 (1972), the defendant had a responsibility to assert the right to a speedy trial prior to his or her request 

for discharge.

The majority opinion now allows participation by the defense 

in the setting of an untimely trial date and then a successful 

motion to discharge under § 29-1208 based upon the very date 

the defense agreed upon. Under the majority’s understanding 

of the current statutory speedy trial scheme, the safest path for 

trial courts is to establish progression orders with set trial dates 

that will require knowing continuances if they are to be moved 

beyond the established 6-month limit. Extra caution should be 

taken in situations where initial appearances are waived by the 

entry of written not guilty pleas.

Instead of expanding on our previous misstep, we should 

correct the error this court committed in Alvarez as described 

herein. For the foregoing reason, I respectfully dissent.