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Nebraska Supreme Court Reverses Denial of Pretrial Motion for Absolute Discharge on Speedy Trial Grounds

The Supreme Court of Nebraska reversed a lower court’s denial of a criminal defendant’s motion for absolute discharge based on statutory speedy trial grounds.

A complaint was filed against Douglas P. Jennings in the county court for Douglas County, Nebraska, charging him with Class I misdemeanor stalking of his former girlfriend in violation of Neb. Rev. Stat. (“NRS”) § 28-311.04. An arrest warrant was issued three days later. More than nine months passed before he was arrested. Jennings filed a motion for absolute discharge because the time period between the filing of the complaint and his arrest exceeded the six-month limit set by NRS § 29-1207 (Reissue 2016).

At a hearing on the motion, the State argued that nine months of the delay was caused solely by Jennings being absent or unavailable and was therefore excludable under NRS § 29-1207(4)(d). A police officer testified that after his arrest Jennings said a friend had told him he was on a warrant list, but there was confusion on whether it was a civil protective order or criminal. Further, he said he travelled to Las Vegas in the summer and found a note he thought was from a process server when he returned. This made him think that someone was seeking to serve him with civil litigation paperwork.

The officer also testified that Jennings told him he had spent about ten months in Denver, but the officer did not ask if he had travelled back and forth to Nebraska. Further, the officer admitted he had never previously attempted to serve the arrest warrant on Jennings. The prosecution did not offer any evidence that any prior attempts had been made to serve the warrant.

The county court denied the motion, reasoning that, by being in Denver, Jennings made himself unavailable for at least nine months. Jennings appealed the ruling to the district court, which affirmed the county court’s ruling. Aided by Thomas C. Riley and Mary M. Dvorak of the Douglas County Public Defender’s Office, Jennings appealed to the Nebraska Supreme Court.

The Court noted that the State’s brief did not even address the merits of the lower courts’ rulings. Instead, it solely maintained that the issue was unreviewable under State v. McGinn, 928 N.W.2d 391 (Neb. 2019). The State maintained that McGinn stands for the principle that, when an assignment of error on appeal references solely the county court’s ruling, the appellate court cannot review the district court’s affirmance of the county court, rendering the assignment of error unreviewable. The Court ruled that this interpretation of McGinn was in error and such an interpretation, although initially viewed favorably by the Court of Appeals in an unpublished opinion, has since been explicitly rejected in two opinions, one of them published.

The State conceded that, should the court reach the merits of Jennings’ assignment of error, the case should be reversed because it failed to meet its burden of proof. The Court agreed, noting that for time to be excluded from a limitations period due to absence or unavailability, the defendant must first be put on notice. See State v. Richter, 481 N.W.2d 200 (Neb. 1992). There was no evidence Jennings was given notice of the pending warrant. The mere pendency of an unserved warrant is not notice, the Court stated. The requirement of notice might be overcome by proof of diligent effort in serving the warrant, but there was no such proof in this case, according to the Court.

Accordingly, the Court reversed the judgments of the district and county courts and remanded the case with directions for Jennings’ motion to be granted. See: State v. Jennings, 957 N.W.2d 143 (Neb. 2021). 

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Related legal case

State v. Jennings

 

 

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