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Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
STATE v. CHAPMAN
Cite as 307 Neb. 443
State of Nebraska, appellee, v.
Ellis Chapman, appellant.
___ N.W.2d ___
Filed October 9, 2020. No. S-19-1065.
1. Judgments: Speedy Trial: Appeal and Error. Generally, a trial court’s
determination as to whether charges should be dismissed on speedy trial
grounds is a factual question which will be affirmed on appeal unless
clearly erroneous.
2. Speedy Trial: Final Orders: Appeal and Error. An order denying an
accused criminal’s nonfrivolous motion for absolute discharge on statu-
tory speedy trial grounds is a ruling affecting a substantial right in a
special proceeding and is therefore final and appealable under Neb. Rev.
Stat. § 25-1902(1)(b) (Supp. 2019).
3. Speedy Trial: Indictments and Informations: Complaints. Although
Nebraska’s speedy trial statutes, Neb. Rev. Stat. § 29-1201 et seq.
(Reissue 2016), expressly refer to indictments and informations, they
also apply to prosecutions commenced by the filing of a complaint in
county court.
4. Speedy Trial. To calculate the time for speedy trial purposes, a court
must exclude the day the complaint was filed, count forward 6 months,
back up 1 day, and then add any time excluded under Neb. Rev. Stat.
§ 29-1207(4) (Reissue 2016) to determine the last day the defendant can
be tried.
5. Speedy Trial: Proof. The burden of proof is upon the State to show
that one or more of the excluded time periods under Neb. Rev. Stat.
§ 29-1207(4) (Reissue 2016) are applicable when the defendant is not
tried within 6 months.
6. ____: ____. To overcome a defendant’s motion for discharge on speedy
trial grounds, the State must prove the existence of excluded time by a
preponderance of the evidence.
7. Speedy Trial. Under Neb. Rev. Stat. § 29-1208 (Reissue 2016), if a
defendant is not brought to trial before the running of the time for
trial as provided for in Neb. Rev. Stat. § 29-1207 (Reissue 2016), as
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Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
STATE v. CHAPMAN
Cite as 307 Neb. 443
extended by any excluded periods, he or she is entitled to absolute dis-
charge from the offense charged and for any other offense required by
law to be joined with that offense.
Appeal from the District Court for Hall County, John H.
Marsh, Judge, on appeal thereto from the County Court for
Hall County, Arthur S. Wetzel, Judge. Judgment of District
Court reversed and remanded with directions.
Jerrod P. Jaeger, Deputy Hall County Public Defender, for
appellant.
Douglas J. Peterson, Attorney General, and Jordan Osborne
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
and Papik, JJ.
Papik, J.
On March 29, 2017, the State filed theft charges against Ellis
Chapman. Chapman did not appear for a scheduled arraignment
approximately 2 weeks later, and the county court for Hall
County issued a warrant for his arrest. Chapman was eventu-
ally arrested over 2 years later on April 24, 2019. Chapman
later moved for absolute discharge under Nebraska’s speedy
trial statutes. The county court overruled Chapman’s motion,
finding that the time during which the arrest warrant was pend-
ing was excluded under the speedy trial statutes. The district
court affirmed. Chapman now appeals to us, and we reverse,
and remand. Because Chapman was not brought to trial within
6 months of the filing of charges and the State failed to carry
its burden to show that any time was excluded for speedy trial
purposes, Chapman was entitled to absolute discharge under
the speedy trial statutes.
BACKGROUND
Charge and Arrest.
On March 29, 2017, Chapman was charged by complaint
in Hall County Court with one count of theft by unlawful
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Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
STATE v. CHAPMAN
Cite as 307 Neb. 443
taking, $500 or less, second offense, a Class I misdemeanor.
An arraignment was scheduled for April 12.
On the day of the scheduled arraignment, Chapman did not
appear. During proceedings on the record, the State requested
that the county court issue a warrant for his arrest. After find-
ing probable cause that Chapman committed the offense, the
county court issued an arrest warrant.
Chapman was eventually arrested, but not until April 24,
2019. One day later, he was brought before the county court
where he pleaded not guilty to the pending charge. Then on
July 1, Chapman filed a motion for absolute discharge. In
it, Chapman asserted he was entitled to absolute discharge,
because he had been denied his statutory right to a speedy
trial guaranteed by Neb. Rev. Stat. §§ 29-1207 and 29-1208
(Reissue 2016).
Speedy Trial Proceedings.
At the hearing on Chapman’s motion for absolute discharge,
the State offered the arrest warrant and subsequent orders
extending it. The State did not present any evidence regard-
ing efforts to serve the arrest warrant. The State also offered
and the county court received a copy of a letter from the
Hall County Attorney addressed to Chapman at an address in
Omaha, Nebraska. The letter was dated March 28, 2017, and
directed Chapman to appear in the county court on April 12,
2017, to answer for the theft charge. The letter was introduced
without any accompanying testimony. At the April 25, 2019,
hearing, during an exchange with the county court regard-
ing his failure to appear for the April 12, 2017, arraignment,
Chapman stated that he lived at a different Omaha address.
The county court overruled Chapman’s motion for abso-
lute discharge from the bench and characterized it as “frivo-
lous.” The county court stated that the period of time during
which the arrest warrant was pending was excluded under the
speedy trial statutes. With that time excluded, it concluded that
Chapman’s speedy trial rights had not been denied when he
filed his motion for absolute discharge.
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Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
STATE v. CHAPMAN
Cite as 307 Neb. 443
Chapman appealed the denial of his motion for absolute dis-
charge to the district court. In his statement of errors, Chapman
asserted that the county court erred by finding that the time
during which the arrest warrant was pending did not count
toward the statutory speedy trial deadline. He also asserted that
the county court denied him a fair hearing and demonstrated
bias and prejudice by finding his motion was frivolous.
Although the district court disagreed with the county court’s
finding that Chapman’s motion was frivolous, it affirmed the
denial of the motion for absolute discharge. The district court
concluded that the county court did not demonstrate bias
or prejudice and that it properly found that the time during
which the arrest warrant was pending was excluded for speedy
trial purposes.
Chapman now appeals the ruling of the district court.
ASSIGNMENTS OF ERROR
Chapman assigns two errors on appeal. He contends that the
district court erred by (1) finding that the county court cor-
rectly determined that the time during which the arrest warrant
was pending was excluded for statutory speedy trial purposes
and (2) finding that the county court had not denied Chapman
a fair hearing.
STANDARD OF REVIEW
[1] Generally, a trial court’s determination as to whether
charges should be dismissed on speedy trial grounds is a
factual question which will be affirmed on appeal unless
clearly erroneous. State v. Lovvorn, 303 Neb. 844, 932 N.W.2d
64 (2019).
ANALYSIS
Jurisdiction.
[2] We begin by briefly addressing our jurisdiction to hear
this appeal. We have held on a number of occasions that
an order denying an accused criminal’s nonfrivolous motion
for absolute discharge on statutory speedy trial grounds is
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Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
STATE v. CHAPMAN
Cite as 307 Neb. 443
a ruling affecting a substantial right in a special proceeding
and is therefore final and appealable under Neb. Rev. Stat.
§ 25-1902(1)(b) (Supp. 2019). See, e.g., State v. Gill, 297 Neb.
852, 901 N.W.2d 679 (2017). Here, the county court concluded
that Chapman’s motion for absolute discharge was frivolous.
If that were the case, we would lack jurisdiction and would be
required to dismiss the appeal. We will not, however, dismiss
the appeal, because, as we will explain, Chapman’s motion was
not only not frivolous, it was meritorious.
Speedy Trial Background.
The statutory right to a speedy trial is set forth in §§ 29-1207
and 29-1208. State v. Vela-Montes, 287 Neb. 679, 844 N.W.2d
286 (2014). Section 29-1207(1) expressly refers to indictments
and informations, requiring that those “indicted or informed
against for any offense shall be brought to trial within six
months,” adding that “such time shall be computed as provided
in this section.” In this case, charges were commenced against
Chapman not by indictment or information, but by the filing of
a complaint in county court.
[3] Although the speedy trial statutes expressly refer to
indictments and informations, in State v. Stevens, 189 Neb.
487, 203 N.W.2d 499 (1973), this court held that they also
apply to prosecutions commenced by the filing of a complaint
in county court. We have subsequently observed that Stevens
did so based on “questionable reasoning,” but, in light of sub-
sequent case law and the Legislature’s apparent acquiescence
in our construction, we have continued to apply the speedy
trial statutes to cases commenced by the filing of a complaint
in county court. See State v. Schanaman, 286 Neb. 125, 133,
835 N.W.2d 66, 71 (2013). See, also, State v. Lebeau, 280 Neb.
238, 241, 784 N.W.2d 921, 925 (2010) (“it is well settled that
the [speedy trial statutes] also appl[y] to prosecutions on com-
plaint in county court”).
As noted above, the speedy trial statutes set a 6-month
deadline in which a defendant must be brought to trial, but
also provide that such time “shall be computed as provided
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Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
STATE v. CHAPMAN
Cite as 307 Neb. 443
in this section.” § 29-1207(1). Section 29-1207(4) goes on to
provide a number of circumstances in which the 6-month clock
to bring a defendant to trial is essentially stopped. See State v.
Liming, 306 Neb. 475, 945 N.W.2d 882 (2020).
[4-7] To calculate the time for speedy trial purposes, a court
must exclude the day the complaint was filed, count forward
6 months, back up 1 day, and then add any time excluded
under § 29-1207(4) to determine the last day the defendant
can be tried. Lebeau, supra. The burden of proof is upon the
State to show that one or more of the excluded time periods
under § 29-1207(4) are applicable when the defendant is not
tried within 6 months. State v. Williams, 277 Neb. 133, 761
N.W.2d 514 (2009). The State must prove the existence of
excluded time by a preponderance of the evidence. See id.
Under § 29-1208, if a defendant is not brought to trial before
the 6-month deadline, as extended by any excluded periods,
expires, he or she is entitled to absolute discharge from the
offense charged and for any other offense required by law to be
joined with that offense. See Liming, supra.
Speedy Trial Analysis.
Applying the speedy trial calculations in this case, the State
had until September 29, 2017, to bring Chapman to trial unless
it carried its burden to show the existence of excluded time.
Section 29-1207(4)(d) does provide that a “period of delay
resulting from the absence or unavailability of the defendant”
is excluded. The county court and district court apparently
believed that any time in which a defendant fails to appear and
an arrest warrant is issued, the defendant is considered absent
or unavailable under § 29-1207(4)(d) for all of the time dur-
ing which the arrest warrant was pending. As we will explain,
and as the State concedes, this conclusion is not supported by
our precedent.
In State v. Richter, 240 Neb. 223, 481 N.W.2d 200 (1992),
we addressed the circumstances under which the pendency
of an arrest warrant may result in excluded time under
§ 29-1207(4)(d). In Richter, we explained that, generally, no
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Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
STATE v. CHAPMAN
Cite as 307 Neb. 443
excluded time arises under § 29-1207(4)(d) if the defendant
fails to appear at a court proceeding of which he or she was
not provided notice. We recognized a possible exception to this
rule, however, suggesting that the pendency of a warrant alone
may result in excluded time if the State can prove that “dili-
gent efforts to secure [the defendant’s] presence by the service
of an arrest warrant have been tried and failed.” Richter, 240
Neb. at 230, 481 N.W.2d at 206. The State acknowledges that
under Richter, the pendency of an arrest warrant can result
in excluded time under § 29-1207(4)(d) only if the State also
proves it used diligent efforts to serve that warrant. It also
admits that it introduced no such proof in this case.
Although the State concedes that the county court and dis-
trict court erred by finding that the pending warrant resulted in
excluded time, it contends that this case should be remanded to
the county court because it made incomplete factual findings.
Specifically, the State asserts that we should direct the county
court to make a finding as to whether Chapman received notice
of the April 12, 2017, scheduled arraignment at which he did
not appear.
The State’s position regarding the need for an additional
factual finding apparently arises out of its understanding that
Richter holds that if a defendant fails to appear at a proceeding
of which he or she had actual notice, the defendant is absent or
unavailable under § 29-1207(4)(d) and excluded time results.
Chapman disputes this reading of Richter, contending that
the case holds that a defendant is absent or unavailable under
§ 29-1207(4)(d) only if he or she fails to appear at a proceed-
ing for which he or she was provided notice through a means
of service prescribed by statute. He contends there is no proof
of such service here.
In the end, it is not necessary for us to resolve the parties’
competing interpretations of Richter. Even if the State is cor-
rect that a defendant’s failure to appear at a proceeding of
which he or she had actual notice results in excluded time, the
State did not introduce any evidence that Chapman received
actual notice of the April 12, 2017, scheduled arraignment.
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Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
STATE v. CHAPMAN
Cite as 307 Neb. 443
The county court did receive into evidence a copy of the letter
from the county attorney addressed to Chapman referencing the
arraignment scheduled for April 12. But the State introduced
no evidence that would allow a reasonable finder of fact to
conclude that Chapman, in fact, received this letter. There was
no testimony or other evidence about how, when, or by whom
the letter was sent; how the address listed on the letter was
obtained; why Chapman could be expected to receive the letter
at that address; or whether the State had any other reason to
believe that Chapman received the letter. The State admitted
at oral argument that it failed to introduce evidence by which
the county court could have concluded that Chapman received
notice of the arraignment scheduled for April 12.
Despite its concession at oral argument that there was
no evidence in the record that would permit a finding that
Chapman received notice of the arraignment scheduled for
April 12, 2017, the State continued to maintain that the case
should be remanded to the county court for additional fac-
tual findings. This was required, the State suggested, by our
cases holding that appellate review of speedy trial calculations
requires complete factual findings. See, e.g., State v. Lintz, 298
Neb. 103, 902 N.W.2d 683 (2017). We disagree that our cases
compel that result. While we have said that we cannot review
a trial court’s factual determinations for clear error if no such
determinations have been made, see Lintz, supra, that principle
would justify remand for additional factual findings only when
there is competent evidence in the record that would allow the
trial court to reach more than one factual conclusion without
committing clear error. In a case like this one, however, where
all agree that there is no competent evidence that would allow
the county court to reasonably conclude that Chapman received
notice of the arraignment scheduled for April 12, remand
would serve no purpose.
Because the State did not carry its burden to show that
any time was excluded from the speedy trial calculation and
because it did not bring Chapman to trial within 6 months
of the filing of charges, Chapman was entitled to absolute
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Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
STATE v. CHAPMAN
Cite as 307 Neb. 443
discharge. Given our conclusion that Chapman was entitled
to absolute discharge, there is no reason to address his second
assignment of error, contending that he was denied a fair hear-
ing in the county court.
CONCLUSION
The county court and district court erred by finding that the
pendency of the warrant resulted in excluded time. And the
State did not introduce sufficient evidence at the speedy trial
hearing that could support any other basis for excluded time.
Because there was no evidence that would support a finding
of excluded time and because Chapman was not brought to
trial within 6 months of the filing of charges, he was entitled
to absolute discharge under the speedy trial statutes. We thus
reverse the district court’s order and remand the cause with
directions for that court to reverse the county court’s order and
remand the cause with directions to grant Chapman absolute
discharge and dismiss the complaint against him.
Reversed and remanded with directions.
Freudenberg, J., not participating.