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Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
STATE v. HERNANDEZ
Cite as 309 Neb. 299
State of Nebraska, appellee, v.
Jaime A. Hernandez, Jr., appellant.
___ N.W.2d___
Filed May 21, 2021. No. S-20-719.
1. Judgments: Speedy Trial: Appeal and Error. A trial court’s deter-
mination as to whether charges should be dismissed on speedy trial
grounds is a factual question which will be affirmed on appeal unless
clearly erroneous.
2. Judgments: Appeal and Error. Under a clearly erroneous standard of
review, an appellate court does not reweigh the evidence but considers
the judgment in a light most favorable to the successful party, resolving
evidentiary conflicts in favor of the successful party, who is entitled to
every reasonable inference deducible from the evidence.
3. Statutes: Appeal and Error. Statutory interpretation presents a ques-
tion of law, which an appellate court reviews independently of the lower
court’s determination.
4. Speedy Trial. The primary burden of bringing an accused person to trial
within the time provided by law is upon the State.
5. ____. To calculate the time for statutory speedy trial purposes, a court
must exclude the day the complaint was filed, count forward 6 months,
back up 1 day, and then add any time excluded under Neb. Rev. Stat.
§ 29-1207(4) (Reissue 2016) to determine the last day the defendant can
be tried.
6. ____. When calculating the time for speedy trial purposes, the State
bears the burden to show, by the greater weight of the evidence, that one
or more of the excluded time periods under Neb. Rev. Stat. § 29-1207(4)
(Reissue 2016) are applicable.
7. Pleadings: Evidence: Waiver: Words and Phrases. A judicial admis-
sion, as a formal act done in the course of judicial proceedings, is a
substitute for evidence and thereby waives and dispenses with the pro-
duction of evidence by conceding for the purpose of litigation that the
proposition of fact alleged by an opponent is true.
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Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
STATE v. HERNANDEZ
Cite as 309 Neb. 299
8. Pleadings: Intent. Judicial admissions must be deliberate, clear, and
unequivocal, and they do not extend beyond the intent of the admission
as disclosed by its context.
9. Pleadings. Formal acts that may operate as judicial admissions include
statements made in pleadings.
10. Trial: Attorney and Client. Statements made by a party or his or her
attorney during the course of a trial may be judicial admissions.
11. Speedy Trial: Notice. A criminal defendant must be properly notified of
the need to appear in court on a given date and time before failure to so
appear can initiate a period of excludable time.
12. Speedy Trial: Words and Phrases. For purposes of Neb. Rev. Stat.
§ 29-1207(4)(a) (Reissue 2016), a proceeding is, in a more particular
sense, any application to a court of justice, however made, for aid in the
enforcement of rights, for relief, for redress of injuries, for damages, or
for any remedial object.
Appeal from the District Court for Douglas County: Marlon
A. Polk, Judge. Reversed and remanded with directions.
Thomas C. Riley, Douglas County Public Defender, and
Rebekah S. Keller for appellant.
Douglas J. Peterson, Attorney General, and Jordan Osborne
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Cassel, J.
INTRODUCTION
Jaime A. Hernandez, Jr., appeals from the denial of absolute
discharge pursuant to the speedy trial statute. 1 At the hear-
ing, the State argued that, despite no evidence of any effort to
serve a bench warrant, its mere issuance “stopped the clock
for purposes of speedy trial.” Realizing that the argument
below was flawed, 2 the State on appeal relies upon Hernandez’
1
See Neb. Rev. Stat. §§ 29-1205 to 29-1209 (Reissue 2016).
2
See, e.g., State v. Chapman, 307 Neb. 443, 949 N.W.2d 490 (2020).
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Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
STATE v. HERNANDEZ
Cite as 309 Neb. 299
“‘judicial admissions’” to prove excludable time. 3 While we
agree a defendant’s admissions may be so used, neither the
admissions here nor reasonable inferences from them estab-
lished excludable time for either “absence or unavailability” 4
or “other proceedings.” 5 Therefore, we reverse, and remand.
BACKGROUND
By an information filed on January 15, 2020, the State
charged Hernandez with one count of possession of metham-
phetamine, a Class IV felony. He pled not guilty in writing and
was released from custody, pending trial, under the condition
that he participate in the “24/7 Sobriety Program.” The written
plea did not specify any date requiring his appearance in court.
On the same day that his written plea was filed, both a motion
for discovery and an order for reciprocal discovery (thereby
disposing of the discovery motion) were filed.
On April 16, 2020, a bench warrant was issued for Hernandez’
arrest due to his nonparticipation in the 24/7 program. Our
record does not show that any effort was made to serve the
warrant. No other proceedings occurred within 6 months of the
State bringing the charge.
On August 4, 2020, Hernandez filed a motion for abso-
lute discharge, alleging a violation of his statutory speedy
trial rights pursuant to § 29-1207. His motion, in addition to
requesting discharge, stated factual allegations.
Among the factual statements specifically set forth in the
motion, it informed the court:
• The information was “filed on January 15, 2020.”
• “That on or about February 21, 2020, to April 3, 2020,
[Hernandez] was incarcerated in Iowa.”
• “That on or about June 3, 2020, [Hernandez] was incarcerated
in Iowa and remains in custody.”
3
Brief for appellee at 7.
4
See § 29-1207(4)(d).
5
See § 29-1207(4)(a).
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Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
STATE v. HERNANDEZ
Cite as 309 Neb. 299
• “That on or about April 16, 2020, [the district court] issued
a warrant for [Hernandez’] arrest for violation of 24/7
Sobriety Program.”
• “That this warrant was never served on [Hernandez].”
Hernandez’ motion did not make any other reference to pro-
ceedings pending against him in Iowa.
At the hearing on Hernandez’ motion, the State presented no
evidence. The State argued that the issuance of the bench war-
rant “stopped the clock for purposes of speedy trial.” Hernandez’
counsel disagreed and responded by reiterating the statements
made in the motion, but she did not refer to any pending
proceedings against Hernandez. Instead, Hernandez’ counsel
verbally informed the court that Hernandez was expected to
“complete that sentence” in January 2021.
The district court overruled Hernandez’ motion. In the
court’s written order, it noted that “[Hernandez] has been, and
remains, in custody in . . . Iowa for unrelated charges since
February 21, 2020.” The court determined that there was a
delay in Hernandez’ trial due to the “‘absence or unavailabil-
ity of [Hernandez]’” and the “‘other proceedings concerning
[Hernandez],’” which both constituted provided grounds for
an excludable period under the speedy trial statute. Finding
114 days of excludable time, the court determined Hernandez’
statutory speedy trial rights had not been violated.
Hernandez perfected a timely appeal, which we moved to
our docket. 6
ASSIGNMENTS OF ERROR
Hernandez assigns overarching error in the district court’s
denial of his motion for absolute discharge. He specifi-
cally assigns, reordered, that the court erred in doing so,
(1) “where the State failed to introduce evidence that could
support any finding of excludable time,” (2) by finding an
excludable period of time under § 29-1207(4)(d) (absence or
6
See Neb. Rev. Stat. § 24-1106(2) and (3) (Cum. Supp. 2020).
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Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
STATE v. HERNANDEZ
Cite as 309 Neb. 299
unavailability), and (3) by finding an excludable period of time
under § 29-1207(4)(a) (other proceedings).
STANDARD OF REVIEW
[1,2] Generally, a trial court’s determination as to whether
charges should be dismissed on speedy trial grounds is a fac-
tual question which will be affirmed on appeal unless clearly
erroneous. 7 Under a clearly erroneous standard of review, an
appellate court does not reweigh the evidence but considers
the judgment in a light most favorable to the successful party,
resolving evidentiary conflicts in favor of the successful
party, who is entitled to every reasonable inference deducible
from the evidence. 8
[3] Statutory interpretation presents a question of law, which
an appellate court reviews independently of the lower court’s
determination. 9
ANALYSIS
We begin by noting, as did the district court, that Hernandez
asserts his rights only under the speedy trial statute. 10 He does
not rely upon the interstate Agreement on Detainers. 11
General Speedy Trial Principles
[4] In Nebraska, a criminal defendant’s statutory speedy
trial rights are governed by §§ 29-1207 and 29-1208. 12
Summarized, § 29-1207 requires that every person “indicted
or informed against for any offense shall be brought to trial
within six months” and generally provides that the “six-month
period shall commence to run from the date the indictment is
7
State v. Blocher, 307 Neb. 874, 951 N.W.2d 499 (2020).
8
State v. Pullens, 281 Neb. 828, 800 N.W.2d 202 (2011).
9
Blocher, supra note 7.
10
See §§ 29-1205 to 29-1209.
11
See Neb. Rev. Stat. §§ 29-759 to 29-765 (Reissue 2016).
12
State v. Jennings, 308 Neb. 835, 957 N.W.2d 143 (2021).
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Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
STATE v. HERNANDEZ
Cite as 309 Neb. 299
returned or the information filed.” 13 The primary burden of
bringing an accused person to trial within the time provided by
law is upon the State. 14
[5] To calculate the time for statutory speedy trial purposes,
a court must exclude the day the complaint was filed, count
forward 6 months, back up 1 day, and then add any time
excluded under § 29-1207(4) to determine the last day the
defendant can be tried. 15 If a defendant is “not brought to trial
before the running of the time for trial as provided for in sec-
tion 29-1207, as extended by excluded periods, he or she shall
be entitled to his or her absolute discharge from the offense
charged.” 16
Here, the State charged Hernandez by information on
January 15, 2020. Excluding the day the information was filed,
counting forward 6 months, and backing up 1 day, the State
was required to bring Hernandez to trial on or before July 15
unless some period of that time was excludable.
[6] When calculating the time for speedy trial purposes, the
State bears the burden to show, by the greater weight of the
evidence, that one or more of the excluded time periods under
§ 29-1207(4) are applicable. 17 This burden—viewed through
the prism of our standard of review—and how that burden may
be satisfied are at the heart of this appeal.
Judicial Admissions
Hernandez asserts that by presenting no evidence at the
hearing on his motion, the State necessarily failed to meet
its burden of proof. The State responds that it was entitled to
13
Accord Jennings, supra note 12.
14
State v. Steele, 261 Neb. 541, 624 N.W.2d 1 (2001).
15
Jennings, supra note 12.
16
§ 29-1208. Accord Jennings, supra note 12.
17
See Jennings, supra note 12. See, also, State v. Gilliam, 292 Neb. 770,
874 N.W.2d 48 (2016) (preponderance of evidence is equivalent of greater
weight of evidence).
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Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
STATE v. HERNANDEZ
Cite as 309 Neb. 299
rely on Hernandez’ judicial admissions—particularly, those
made in his motion. We agree with the State.
[7-10] A judicial admission, as a formal act done in the
course of judicial proceedings, is a substitute for evidence and
thereby waives and dispenses with the production of evidence
by conceding for the purpose of litigation that the proposition
of fact alleged by an opponent is true. 18 Judicial admissions
must be deliberate, clear, and unequivocal, and they do not
extend beyond the intent of the admission as disclosed by its
context. 19 Formal acts that may operate as judicial admissions
include statements made in pleadings. 20 Further, statements
made by a party or his or her attorney during the course of a
trial may be judicial admissions. 21
We see no reason why these principles should not apply to
admissions made in a motion for absolute discharge filed under
§§ 29-1205 to 29-1209. We express no opinion regarding their
applicability to other proceedings governed by chapter 29 of
the Nebraska Revised Statutes.
Hernandez judicially admitted that (1) he was charged by
information on January 15, 2020; (2) he was incarcerated in
Iowa on February 21 to April 3; (3) the court issued a bench
warrant for him on April 16, but it was never served on him; (4)
he was then incarcerated in Iowa since June 3; and (5) he was
expected to complete his Iowa sentence in January 2021.
The State was entitled to take advantage of these admis-
sions. Therefore, the State’s failure to produce its own evi-
dence did not necessarily mean that the district court erred in
overruling Hernandez’ motion. Hernandez’ first specific assign-
ment lacks merit. We now turn to the question of whether the
18
State v. Canady, 263 Neb. 552, 641 N.W.2d 43 (2002).
19
State v. Burke, 23 Neb. App. 750, 876 N.W.2d 922 (2016).
20
See Wisner v. Vandelay Investments, 300 Neb. 825, 916 N.W.2d 698
(2018).
21
See Neb. Rev. Stat. § 7-107(2) (Reissue 2012).
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Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
STATE v. HERNANDEZ
Cite as 309 Neb. 299
district court clearly erred in finding Hernandez’ admissions
sufficient to establish excludable time.
“Absence or Unavailability” Exclusion
Hernandez assigns that the court erred by finding an exclud-
able period for time existed under § 29-1207(4)(d). This sub-
section provides that an excludable period of time for speedy
trial purposes may result from the “period of delay resulting
from the absence or unavailability of the defendant.” 22 Whether
a defendant’s unavailability is an excludable time period under
§ 29-1207(4)(d) depends upon whether it is attributable to the
State or to the defendant. 23
At the hearing regarding Hernandez’ motion, the State argued
that the bench warrant issued by the court stopped the speedy
trial clock under § 29-1207(4)(d). The State speculated, “That
warrant would have been the same warrant that [the court
would have issued] if we had a pretrial and [Hernandez] didn’t
appear . . . .” Realizing that this argument overlooks the State’s
burden to notify Hernandez of his need to appear in court, the
State does not reassert this argument on appeal. Instead, the
State relies solely on § 29-1207(4)(a) and finds “no need to
address . . . § 29-1207(4)(d).” 24 However, we take this oppor-
tunity to again dispel the misconception that the speedy trial
clock automatically stops once a warrant is issued.
[11] In State v. Chapman, 25 this court reiterated that when
a defendant fails to appear and an arrest warrant is issued,
the defendant is not necessarily considered absent or unavail-
able under § 29-1207(4)(d) for all of the time during which
the arrest warrant was pending. 26 A criminal defendant must
be properly notified of the need to appear in court on a given
22
§ 29-1207(4)(d).
23
Steele, supra note 14.
24
Brief for appellee at 10.
25
Chapman, supra note 2.
26
See, also, Jennings, supra note 12.
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Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
STATE v. HERNANDEZ
Cite as 309 Neb. 299
date and time before failure to so appear can initiate a period
of excludable time. 27 Here, the written arraignment lacked any
such notice—a practice making it difficult or impossible for
the State to show that a defendant was notified of the need to
appear. We recognized a possible exception to the rule requir-
ing notice, however, suggesting that the pendency of a warrant
alone may result in excluded time if the State can prove that
“‘diligent efforts to secure [the defendant’s] presence by the
service of an arrest warrant have been tried and failed.’” 28 The
State has the burden to prove that it used diligent efforts to
serve the warrant. 29
Here, contrary to the court’s written order that cited a single
continuous period of incarceration, Hernandez was incarcer-
ated two different times—from February 21 to April 3, 2020,
and from June 3 to a date beyond the filing of his motion. The
bench warrant was not issued until April 16. Accordingly, the
only period of incarceration that could arguably constitute a
time period in which Hernandez was “absent or unavailable”
was the later one.
However, Hernandez was not incarcerated at the time that
the court issued the bench warrant. Yet, the State failed to serve
the court’s bench warrant and it did not present any evidence,
nor can it be reasonably inferred from Hernandez’ admissions,
that the State made diligent efforts to serve the warrant on
Hernandez when he was not incarcerated and available to be
served. Moreover, there was no evidence that the State at any
time lodged or attempted to lodge a detainer against Hernandez
with any official or institution in Iowa pursuant to the inter-
state Agreement on Detainers. 30 Therefore, because Hernandez
27
State v. Richter, 240 Neb. 223, 481 N.W.2d 200 (1992).
28
Chapman, supra note 2, 307 Neb. at 449, 949 N.W.2d at 494 (quoting
Richter, supra note 27). See, also, Jennings, supra note 12.
29
See Chapman, supra note 2.
30
See § 29-759. See, also, State v. Williams, 253 Neb. 619, 573 N.W.2d 106
(1997) (arrest warrant can serve as detainer).
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Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
STATE v. HERNANDEZ
Cite as 309 Neb. 299
was not absent or unavailable under § 29-1207(4)(d), the court
clearly erred in finding that the times of his Iowa incarceration
were excluded.
“Other Proceedings” Exclusion
Hernandez also assigns that the court erred by finding
excludable time under § 29-1207(4)(a). Hernandez argues that
there was no evidence that a delay occurred in his case due
to other pending proceedings against him. The subsection
explains that an excludable period of time for speedy trial
purposes may result from “other proceedings concerning the
defendant, including, but not limited to, . . . the time consumed
in the trial of other charges against the defendant.” 31
The State encourages us to extend our decision in State v.
Blocher 32 and rule that the entire time that Hernandez was
incarcerated in another state qualifies as excludable time. In
Blocher, we determined that a portion of the time that a defend
ant was held in one Nebraska county pending proceedings in
that county served as excludable time under § 29-1207(4)(a)
for charges pending in another Nebraska county. We explained,
Ҥ 29-1207(4)(a) applies to proceedings in the pending case as
well as to proceedings in other pending cases.” 33
[12] The State would expand the term “proceeding” too
broadly. Drawing on a legal dictionary, we have defined a
“proceeding” for speedy trial purposes. 34 For purposes of
§ 29-1207(4)(a), a proceeding is, in a more particular sense,
any application to a court of justice, however made, for aid
in the enforcement of rights, for relief, for redress of injuries,
for damages, or for any remedial object. 35 We warned that
“proceeding” was not to be read so broadly as to encompass
31
§ 29-1207(4)(a).
32
See Blocher, supra note 7.
33
Id. at 881, 951 N.W.2d at 504 (emphasis supplied).
34
See State v. Tamayo, 280 Neb. 836, 791 N.W.2d 152 (2010).
35
See id.
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Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
STATE v. HERNANDEZ
Cite as 309 Neb. 299
“‘any delay at trial that “concerns” the defendant,’” because
“‘[i]f the Legislature had intended that the term “proceeding”
encompass such a broad purview, there would have been little
reason for the Legislature to have provided for exclusion under
§ 29-1207(4)(f), the “catchall provision.”’” 36
The State did not present any evidence, nor did Hernandez
judicially admit, that there were any pending proceedings
against Hernandez—only that he was “incarcerated in Iowa.”
Moreover, at the hearing, Hernandez’ counsel informed the
court that Hernandez was expected to “complete that sentence”
in January 2021.
The expected completion date implied that any proceedings
in Iowa regarding Hernandez had already been concluded and
that he was incarcerated solely for the purpose of completing
a sentence. Accordingly, the district court could not reasonably
infer that Hernandez was incarcerated pursuant to a pending
proceeding. It necessarily follows that the court clearly erred
in finding that an excludable period of time existed under
§ 29-1207(4)(a).
CONCLUSION
The State failed to bring Hernandez to trial within its
6-month statutory deadline. The only evidence—Hernandez’
judicial admissions—did not prove or permit a reasonable
inference of delay resulting from either “absence or unavail-
ability” or “other proceedings.” The court clearly erred in over-
ruling Hernandez’ motion for absolute discharge. We reverse
the district court’s order and remand the cause with directions
to dismiss the information against Hernandez.
Reversed and remanded with directions.
36
See id. at 843-44, 791 N.W.2d at 157.