State v. Abernathy , 310 Neb. 880 ( 2022 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
03/14/2022 08:07 AM CDT
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. ABERNATHY
Cite as 310 Neb. 880State of Nebraska, appellee,
v. Kyle S. Abernathy,
appellant.
___ N.W.2d ___
Filed February 11, 2022. No. S-21-016.
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. Judgments: Jurisdiction: Appeal and Error. A jurisdictional issue that
does not involve a factual dispute presents a question of law, which an
appellate court independently decides.
3. Speedy Trial. The statutory right to a speedy trial is set forth in Neb.
Rev. Stat. §§ 29-1207 and 29-1208 (Reissue 2016).
4. ____. To calculate the deadline for trial under the speedy trial statutes, a
court must exclude the day the State filed the information, count forward
6 months, back up 1 day, and then add any time excluded under Neb.
Rev. Stat. § 29-1207(4) (Reissue 2016).
5. Constitutional Law: Speedy Trial. A pretrial order denying a motion
for discharge on constitutional speedy trial grounds does not affect a
substantial right in a special proceeding for purposes of Neb. Rev. Stat.
§ 25-1902(1)(b) (Cum. Supp. 2020).
Appeal from the District Court for Sarpy County: Michael
A. Smith, Judge. Affirmed in part, and in part dismissed.
April O’Loughlin, Assistant Sarpy County Public Defender,
for appellant.
Douglas J. Peterson, Attorney General, and Stacy M. Foust
for appellee.
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. ABERNATHY
Cite as 310 Neb. 880Miller-Lerman, Cassel, Stacy, Funke, Papik, and
Freudenberg, JJ., and Daugherty, District Judge.
Papik, J.
Kyle S. Abernathy appeals an order of the district court
overruling his motion for absolute discharge, which asserted
violations of his constitutional and statutory rights to a speedy
trial. See, U.S. Const. amend VI; Neb. Const. art. I, § 11; Neb.
Rev. Stat. §§ 29-1205 to 29-1209 (Reissue 2016). Abernathy
primarily argues that the district court erred by finding that
continuances of trial in response to the COVID-19 pandemic
were for good cause. For reasons we will explain, we affirm in
part, and in part dismiss.
BACKGROUND
Information, Pretrial Motions, and
Initial Continuances of Trial.
On September 10, 2019, Abernathy was charged by informa-
tion with one count of first degree sexual assault. He thereafter
made several pretrial motions.
One of Abernathy’s pretrial motions was an oral motion to
continue the trial made on October 22, 2019. The district court
granted the request that day and set trial for January 22, 2020.
On January 14, the district court, on its own motion, continued
the trial to March 18.
District Court’s COVID-19 Continuances.
On March 17, 2020, the district court, again acting on
its own motion, continued the trial previously scheduled for
March 18 to May 20. In its order continuing the trial, the
district court made a number of observations regarding the
COVID-19 pandemic. It observed that the spread of COVID-19
had begun to impact a variety of societal and governmental
functions in Nebraska; that the President of the United States
and the Governor of Nebraska had issued emergency procla-
mations; that the Chief Justice of the Nebraska Supreme Court
had ordered the courts to continue to function but “placed
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STATE v. ABERNATHY
Cite as 310 Neb. 880restrictions on individuals that may have been exposed to the
virus”; that the U.S. District Court of Nebraska had continued
jury trials for the month of March 2020 in an order noting that
“the gathering of jurors may be seen as contrary to the advice
being given by public health officials, and that these health
concerns would likely interfere with the ability to select a jury
and with the jury’s deliberations”; that a “Douglas County
judge” had continued a jury trial to allow those potential jurors
to adapt to the closing of schools and daycare facilities; that
the district court had consulted with the local health depart-
ment and, while there was no recommendation that the trial be
continued, was advised that the situation was changing rapidly
and that the recommendation could change in a few days; and
that after this communication with local health authorities,
there had been “additional restrictions from various officials
regarding public gatherings.” Based on these reasons, the dis-
trict court stated that there was “good cause” for the contin­
uance under § 29-1207(4)(f). The district court also stated that
it was “willing to address any speedy trial matters, including
the findings of this order, upon the motion of a party with
appropriate notice given.”
On the same day it entered the order continuing the trial,
the district court held a hearing on a motion in limine filed by
the State. During the hearing, the district court explained its
decision to continue the trial. It also stated that if the parties
wished to raise any issues regarding the continuance or “speedy
trial factors,” they could file a motion. Abernathy’s counsel
responded that she would read the order of continuance and
then “file whatever motion needs to be filed.”
The district court continued the trial again on April 17, 2020.
The district court’s order of continuance stated, “Given the cur-
rent public health emergency due to the COVID-19 disease,
the Court is continuing or canceling all in-person hearings and
trials.” It found that “the safety and health of the participants
is good cause for continuance.” Trial was scheduled for July 7
through 24, with specific dates to be determined later.
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STATE v. ABERNATHY
Cite as 310 Neb. 880At a pretrial conference on June 16, 2020, both defense
counsel and the State agreed to a trial date of September 8, and
the district court issued an order setting trial. On August 13,
the district court ordered the case to be called for a jury trial
on September 9.
Motion for Discharge.
On August 31, 2020, Abernathy filed a motion for absolute
discharge. He asserted that he was entitled to discharge because
the State had violated his statutory and constitutional rights to
a speedy trial. The district court held a hearing on the motion
on September 29. It took judicial notice of the entire court file,
and the State introduced transcripts of certain hearings held
in the case.
Later that same day, the State filed what it styled as a
“Motion to Establish Good Cause.” The motion requested that
the district court find that the time between March 16 and
September 8, 2020, was excluded for purposes of the statutory
speedy trial calculations, because there was “good cause” for
such delay under § 29-1207(4)(f).
A hearing was held on the State’s motion. At the hearing,
the State offered evidence, which included (1) a March 13,
2020, proclamation by the Governor of Nebraska declaring
a state of emergency within the State of Nebraska due to
COVID-19; (2) a press release from the Governor dated March
17, 2020, reminding Nebraskans about the new guidelines
from the Centers for Disease Control and Prevention to limit
gatherings to 10 people or less; (3) an order dated March 18,
2020, from the judicial district’s presiding judge excusing
jurors from service for the next 30 days because of the public
health emergency caused by COVID-19; (4) an order extend-
ing the aforementioned order through May 31; (5) another
order extending the aforementioned order through the end of
June 2020 for the district court jury panel; and (6) the district
court’s sua sponte orders of continuance in this case. Attached
to the presiding judge’s initial order excusing jurors from jury
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STATE v. ABERNATHY
Cite as 310 Neb. 880service were affidavits from the Sarpy County jury commis-
sioner and the clerks of the district courts of Sarpy County
and Cass County stating that impaneling the required number
of prospective jurors would violate public gathering limits set
forth by the Centers for Disease Control and Prevention and
other entities.
Abernathy objected to the State’s offer of evidence, claiming
that the district court lacked “jurisdiction to reopen the record.”
Abernathy argued that once he filed his motion for discharge,
the district court could not receive evidence offered to sup-
port a finding of “good cause” under § 29-1207(4)(f). The
district court took under advisement the question of whether it
could receive the State’s evidence for purposes of Abernathy’s
motion for discharge.
The district court ultimately overruled Abernathy’s motion
for discharge in a written order. The district court found that
Abernathy’s pretrial motions and request for a continuance
resulted in 170 excluded days. The district court also found
an additional period of excluded time between March 18 and
July 1, 2020. The district court rejected Abernathy’s argument
that it lacked jurisdiction to consider the evidence the State
offered regarding the COVID-19 pandemic and received it for
purposes of the motion for discharge. It then relied on that
evidence to find that it “was effectively precluded from hold-
ing jury trials” from the entry of the continuance on March 18
through July 1 and such delay was thus for “good cause” under
§ 29-1207(4)(f). Accounting for the number of excluded days,
the district court found that the State had until December 18
to bring Abernathy to trial and that Abernathy was not entitled
to discharge.
The district court also found no merit to Abernathy’s argu-
ment that his constitutional speedy trial rights were violated.
Abernathy appealed.
ASSIGNMENTS OF ERROR
Abernathy assigns several errors, but they can be consoli-
dated and restated as two: (1) that the district court erred by
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STATE v. ABERNATHY
Cite as 310 Neb. 880finding his statutory speedy trial rights were not violated and
(2) that the district court erred by finding that his constitutional
speedy trial rights were not violated.
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).
[2] A jurisdictional issue that does not involve a factual
dispute presents a question of law, which an appellate court
independently decides. Mutual of Omaha Bank v. Watson, 301
Neb. 833, 920 N.W.2d 284 (2018).
ANALYSIS
Statutory Right to Speedy Trial.
[3] Abernathy contends that he was entitled to discharge
because the State violated his statutory right to a speedy trial.
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). 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. See
Lovvorn, supra. Relevant to this appeal, § 29-1207(4)(f) pro-
vides that periods of delay not specifically enumerated in the
statute may be excluded, “but only if the court finds that they
are for good cause.” 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. See Lovvorn, supra.Abernathy’s appeal is focused on the district court’s deter-
mination that the period of time between March 18 and
July 1, 2020, was a period of delay for good cause under
§ 29-1207(4)(f) and thus excluded. In his initial brief on
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STATE v. ABERNATHY
Cite as 310 Neb. 880appeal, Abernathy presented two arguments in support of his
position that the district court erred in its good cause determi-
nation. First, he argued that the State was obligated to present
evidence that would support a finding of good cause prior to
the filing of the motion for discharge and that it did not do so.
Second, and alternatively, he argued that even if the district
court could consider evidence presented after the filing of the
motion for discharge, the record did not contain evidence that
would support a finding of good cause.
Abernathy was not the only criminal defendant to make
such arguments to challenge findings that continuances entered
in response to the COVID-19 pandemic were for good cause.
After the submission of briefs in this case, we addressed sub-
stantially similar arguments in State v. Chase, ante p. 160,
964 N.W.2d 254 (2021), and State v. Brown, ante p. 224, 964
N.W.2d 682 (2021). In Chase, supra, we held that evidence of
good cause is properly presented at a hearing on a motion for
absolute discharge and need not be presented at the time of a
court’s sua sponte order delaying trial. And in Brown, supra,
we held that the district court did not clearly err when it found
that continuances of trial in response to the COVID-19 pan-
demic in March and May 2020 were for good cause. We noted
that the State had presented evidence of restrictions imposed as
a result of the pandemic and that the district court had taken
judicial notice of “various . . . orders and declarations of public
officials and directives of health agencies such as the [local]
Health Department and the CDC.” Id. at 236, 964 N.W.2d
at 691.
In light of our decisions in Chase and Brown, Abernathy’s
arguments fail. Under Chase, the State was not obligated to
present evidence that would support a finding of good cause
prior to the filing of the motion for discharge. And we see
no meaningful difference between the evidence regarding the
COVID-19 pandemic that we found supported a finding of
good cause in Brown and the evidence offered by the State in
this case.
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STATE v. ABERNATHY
Cite as 310 Neb. 880Faced with our decisions in Chase and Brown, Abernathy
raised a new contention at oral argument. There, he contended
that the district court lacked jurisdiction to allow the State to
present evidence that would support a finding of good cause
after the conclusion of the hearing on his motion for discharge
on September 29, 2020. Abernathy’s jurisdictional argument
is misplaced. The district court had subject matter jurisdiction
of this criminal felony case, and prior to its order denying
Abernathy’s motion for discharge, no appeal had been filed
that would divest it of that jurisdiction. See, In re Estate of
Adelung, 306 Neb. 646, 657-68 947 N.W.2d 269, 282 (2020)
(“[s]ubject matter jurisdiction is the power of a tribunal to
hear and determine a case in the general class or category to
which the proceedings in question belong and to deal with the
general subject matter involved”); Heckman v. Marchio, 296
Neb. 458, 894 N.W.2d 296 (2017) (explaining that appellate
court acquires jurisdiction if party appeals from final order
or judgment).
We understand the district court to have treated the State’s
“Motion to Establish Good Cause” as, effectively, a motion to
reopen the record for the submission of additional evidence on
the motion for discharge. The district court did not lack juris-
diction to reopen the record. The reopening of the record to
receive additional evidence on the motion was a matter within
the district court’s discretion. See, e.g., State v. Stricklin,
290 Neb. 542, 861 N.W.2d 367 (2015) (reviewing denial of
motion to reopen evidence for abuse of discretion); Myhra v.
Myhra, 16 Neb. App. 920, 925, 756 N.W.2d 528, 536 (2008)
(“[t]he reopening of a case to receive additional evidence is
a matter within the discretion of the district court and will
not be disturbed on appeal in the absence of an abuse of that
discretion”).
[4] Given our conclusion that the district court did not err
by finding that the period of time between March 18 and July
1, 2020, was excluded for good cause, Abernathy’s argument
that his statutory speedy trial rights were violated cannot
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STATE v. ABERNATHY
Cite as 310 Neb. 880succeed. To calculate the deadline for trial under the speedy
trial statutes, a court must exclude the day the State filed the
information, count forward 6 months, back up 1 day, and then
add any time excluded under § 29-1207(4). State v. Liming,
306 Neb. 475, 945 N.W.2d 882 (2020). Because the informa-
tion in this case was filed on September 10, 2019, the State
had until March 10, 2020, to bring Abernathy to trial if there
were no excluded days. Abernathy concedes, however, that the
district court properly found over 100 excluded days as a result
of his various pretrial motions and request for a contin­uance.
When those excluded days and the days the district court found
were excluded for good cause are added, time remained on
the speedy trial clock when Abernathy filed his motion for
discharge. The district court thus did not err in overruling the
motion for discharge on statutory speedy trial grounds.
Constitutional Right to Speedy Trial.
Abernathy also claims that the district court erred by finding
that his constitutional right to a speedy trial was not violated.
We have held and reaffirmed on a number of occasions that
the denial of a motion for discharge on statutory speedy trial
grounds is an order that affects a substantial right in a special
proceeding and thus is immediately appealable. See State v.
Gibbs, 253 Neb. 241, 570 N.W.2d 326 (1997). See, also, State
v. Williams, 277 Neb. 133, 761 N.W.2d 514 (2009). We do
not appear, however, to have previously analyzed whether the
denial of a motion for discharge on constitutional speedy trial
grounds is also immediately appealable.
In their initial briefing, both parties assume that we could
review Abernathy’s constitutional speedy trial claim in this
appeal. That assumption is understandable as we have previ-
ously considered the merits of constitutional speedy trial argu-
ments in other immediate appeals. See, e.g., State v. Brown,
ante p. 224, 964 N.W.2d 682 (2021); State v. Lovvorn, 303
Neb. 844, 932 N.W.2d 64 (2019); State v. Gill, 297 Neb. 852,
901 N.W.2d 679 (2017); State v. Bridgeford, 298 Neb. 156,
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STATE v. ABERNATHY
Cite as 310 Neb. 880903 N.W.2d 22 (2017), modified on denial of rehearing 299
Neb. 22, 907 N.W.2d 15 (2018), and disapproved on other
grounds, Lovvorn, supra; State v. Hettle, 288 Neb. 288, 848
N.W.2d 582 (2014); State v. Loyd, 269 Neb. 762, 696 N.W.2d
860 (2005); State v. Feldhacker, 267 Neb. 145, 672 N.W.2d
627 (2004); State v. Tucker, 259 Neb. 225, 609 N.W.2d 306(2000). We did not, however, analyze our appellate jurisdiction
in those cases, and we cannot merely assume that it exists. To
the contrary, it is our duty to independently determine whether
we have jurisdiction over the matters before us. See State
v. Uhing, 301 Neb. 768, 919 N.W.2d 909 (2018). With that
duty in mind, we ordered the parties to submit supplemental
briefs addressing whether we have appellate jurisdiction over
Abernathy’s claim that the district court erred by finding that
he was not entitled to discharge on constitutional speedy trial
grounds. We take up that issue now.
An assessment of whether we have appellate jurisdiction to
consider Abernathy’s constitutional speedy trial argument must
begin with Neb. Rev. Stat. § 25-1902(1) (Cum. Supp. 2020).
That statute enumerates four categories of “final orders,”
which appellate courts are authorized to “vacate[], modif[y], or
reverse[].” See, also, Neb. Rev. Stat. § 25-1911 (Reissue 2016)
(“[a] judgment rendered or final order made by the district
court may be reversed, vacated, or modified for errors appear-
ing on the record”). The denial of a motion for discharge based
on constitutional speedy trial grounds could possibly fit in only
one of those categories—“[a]n order affecting a substantial
right made during a special proceeding.” § 25-1902(1)(b). But
as we will explain, we find that it does not.
Our conclusion—that an order denying a motion for dis-
charge based on constitutional speedy trial grounds is not an
order affecting a substantial right during a special proceed-
ing—is largely informed by the Nebraska Court of Appeals’
opinion in State v. Wilson, 15 Neb. App. 212, 724 N.W.2d 99(2006). There, the Court of Appeals concluded that such an
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STATE v. ABERNATHY
Cite as 310 Neb. 880order, standing on its own, does not affect a substantial right
and is not issued in a special proceeding.
In support of its conclusion that such an order, standing
on its own, does not affect a substantial right, the Court of
Appeals relied on United States v. MacDonald, 435 U.S. 850,
98 S. Ct. 1547, 56 L. Ed. 2d 18 (1978), a U.S. Supreme Court
case in which the court held that a defendant may not take an
interlocutory appeal of an order denying a motion to dismiss
an indictment based on constitutional speedy trial grounds.
The Court of Appeals observed that in MacDonald, the U.S.
Supreme Court determined that the constitutional speedy trial
right was not a “right not to be tried” and that constitutional
speedy trial claims, because they usually depend on a show-
ing of prejudice, are best assessed after the development of
facts at a trial. Wilson, 15 Neb. App. at 220, 724 N.W.2d at
107, quoting MacDonald, supra (internal quotation marks
omitted). In support of its conclusion that an order denying
a motion for discharge based on constitutional speedy trial
grounds is not issued in a special proceeding, the Court of
Appeals in Wilson noted that, unlike the statutory right to a
speedy trial, the constitutional right to a speedy trial is not a
statutory remedy and does not authorize a special application
to a court to enforce it.
[5] A few years after the Court of Appeals’ opinion in
Wilson, we briefly commented upon it in State v. Williams, 277
Neb. 133, 761 N.W.2d 514 (2009). In the course of rejecting
an argument that we should overrule our precedent finding
that orders denying motions for discharge based on statutory
speedy trial rights are immediately appealable, we observed
that the Court of Appeals “correctly noted” in Wilson that
“‘speedy trial claims based on statutory grounds are more
amenable to resolution prior to trial than are those claims
based on constitutional grounds.’” Id. at 137, 761 N.W.2d at
520, quoting Wilson, supra. While our approving language in
Williams may have been dicta in that case, we continue to find
compelling the reasoning in Wilson that an order denying a
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Cite as 310 Neb. 880motion for discharge on constitutional speedy trial grounds is
best resolved after a trial. And given this conclusion, we could
hardly say that the constitutional right to a speedy trial would
be significantly undermined or irrevocably lost by postponing
appellate review, an essential quality of an order that affects a
substantial right. See Tilson v. Tilson, 299 Neb. 64, 907 N.W.2d
31 (2018). We thus conclude that a pretrial order denying a
motion for discharge on constitutional speedy trial grounds
does not affect a substantial right in a special proceeding for
purposes of § 25-1902(1)(b).
Although the foregoing conclusion may appear to signal
the end of the jurisdictional road, a bit more lies ahead. And
that is because, in some circumstances, our law allows appel-
late courts, in the course of reviewing properly appealed final
orders, to also consider the merits of other decisions that would
not be final orders standing on their own. In Wilson, the Court
of Appeals relied on this law to conclude that appellate courts
could review the overruling of a motion alleging a violation
of the constitutional speedy trial right if raised in the context
of an appeal also asserting a nonfrivolous claim that the court
erred by overruling a motion for discharge based on statutory
speedy trial grounds. In his supplemental brief, Abernathy
contends that because he raised a nonfrivolous claim of error
regarding the overruling of his statutory speedy trial right, we
may consider his constitutional speedy trial claim. We find that
our statutes governing appellate jurisdiction do not permit us
to do so.
In Wilson, the Court of Appeals relied on State v. Loyd,
269 Neb. 762, 696 N.W.2d 860 (2005), to find that defendants
could obtain review of a constitutional speedy trial motion for
discharge if joined with a nonfrivolous statutory speedy trial
claim. In particular, the Court of Appeals relied on language in
Loyd stating that “[a]n appeal from a final order may raise, on
appeal, every issue presented by the order that is the subject
of the appeal.” 269 Neb. at 771, 696 N.W.2d at 869. The prin-
cipal authority for this citation in Loyd was an Indiana case,
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Cite as 310 Neb. 880Tom-Wat, Inc. v. Fink, 741 N.E.2d 343 (Ind. 2001). In that
case, the trial court filed a single order denying both parties’
cross-motions for summary judgment. On appeal, the Indiana
Supreme Court concluded that the denials of both motions
for summary judgment were properly before it, citing another
Indiana Supreme Court case for the proposition that “an inter-
locutory appeal raises every issue presented by the order that is
the subject of the appeal.” Id. at 346, citing Harbour v. Arelco,
Inc., 678 N.E.2d 381 (Ind. 1997).
The meaning of this particular language in Loyd is not
immediately obvious. Viewed in isolation, one might read it to
suggest that a party could obtain appellate review of any trial
court finding or directive that happens to appear within a docu-
ment in which the trial court also issues an order that qualifies
as a final order under § 25-1902(1). Such a reading, however,
would find no support in our statutes conferring appellate
jurisdiction or our cases applying them. To the contrary, our
appellate cases recognize that a trial court’s every finding
and directive does not become immediately reviewable just
because it happens to appear in a document containing a final,
appealable order. See, e.g., State v. Gill, 297 Neb. 852, 901
N.W.2d 679 (2017) (concluding that even if order upon which
jurisdiction is based had also disposed of separate motion, por-
tion of order addressing separate issue would not have been
appealable).
So when does the appeal of a final order allow a party
to also obtain review of a nonfinal order? We believe that
§ 25-1911 supplies the answer. As Loyd went on to explain,
§ 25-1911 limits the authority of appellate courts to reversing,
vacating, or modifying the final order from which the appeal
is taken. On some occasions, in order for an appellate court to
determine whether a final order was erroneous or void and thus
subject to reversal, vacation, or modification, it must review
a trial court’s determination of other issues. But when, in the
language of Loyd, a district court’s resolution of another issue
“do[es] not bear on the correctness of the final order upon
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Cite as 310 Neb. 880which its appellate jurisdiction is based” it cannot be reviewed.
269 Neb. at 771, 696 N.W.2d at 869.
Our precedent illustrates the line between the two catego-
ries of cases discussed above. In Loyd, we concluded that we
could not review the district court’s earlier denial of a motion
for discharge based on statute of limitations grounds because
whether the prosecution was barred by the statute of limita-
tions did not affect whether the final order that was the subject
of the appeal was properly overruled. See, also, Gill, supra.On the other hand, in In re Interest of Michael N., 302 Neb.
652, 925 N.W.2d 51 (2019), we held that we could review the
denial of motions to dismiss filed by parents in a juvenile case
even though, standing alone, they would not be appealable. We
concluded we could review the motions to dismiss because the
parents had also appealed a detention order, which was final
and appealable, and if the action should have been dismissed
pursuant to the motions to dismiss, “we would be required to
reverse, vacate, or modify the detention order.” Id. at 667, 925
N.W.2d at 62. Similarly, in Breci v. St. Paul Mercury Ins. Co.,
288 Neb. 626, 637, 849 N.W.2d 523, 532 (2014), we found that
we could review various nonfinal orders “because a reversal on
any of the nonfinal orders would require us to reverse, vacate,
or modify the final judgment.”
These cases also demonstrate that we cannot review
Abernathy’s claim that the district court erred by overruling
his motion for discharge on constitutional speedy trial grounds.
The final order that is the subject of this appeal is the over­
ruling of Abernathy’s motion for discharge on statutory speedy
trial grounds. That is thus the order that is subject to possible
reversal, vacation, or modification under § 25-1911. But even
a determination that the district court erred by not granting dis-
charge on constitutional speedy trial grounds would not require
the reversal, vacation, or modification of the order overruling
the motion for discharge on statutory speedy trial grounds. As
we have said on many occasions, “the constitutional right to
a speedy trial and the statutory implementation of that right
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Cite as 310 Neb. 880exist independently of each other.” State v. Brooks, 285 Neb.
640, 643, 828 N.W.2d 496, 499 (2013).
Moreover, those independent rights are subject to very dif-
ferent modes of analysis, with the statutory speedy trial right
analyzed as essentially a math problem with no requirement
of prejudice, see State v. Gnanaprakasam, ante p. 519, 967
N.W.2d 89 (2021), while the question of whether the constitu-
tional right has been violated is determined through the appli-
cation of a multifactor balancing test in which prejudice to the
defendant is one of the factors, see State v. Brown, ante p. 224,
964 N.W.2d 682 (2021). We recognize that we have said that
the statutory speedy trial deadline “provides a useful standard
for assessing” one of the factors in that multifactor balancing
test. See State v. Lovvorn, 303 Neb. 844, 852, 932 N.W.2d 64,
70 (2019). But even so, a determination that the district court
erred by overruling Abernathy’s motion for discharge on con-
stitutional speedy trial grounds would not affect whether we
would be obligated to vacate, reverse, or modify the district
court’s separate determination that time remained on the statu-
tory speedy trial clock at the time Abernathy filed his motion
for discharge. Consequently, we may not review the order
overruling the motion for discharge on constitutional speedy
trial grounds at this time.
As noted above, we acknowledge that in a number of cases
in which defendants filed immediate appeals of orders over-
ruling motions for discharge on constitutional speedy trial
grounds, we have proceeded to the substance of the claim
without stopping to analyze our appellate jurisdiction. Having
now considered the issue in this case, however, we determine
we lack appellate jurisdiction and thus dismiss that portion of
the appeal.
CONCLUSION
We conclude that the district court did not err in determin-
ing that Abernathy was not entitled to absolute discharge on
statutory speedy trial grounds. We find that we lack appellate
- 895 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. ABERNATHY
Cite as 310 Neb. 880jurisdiction to review his claim that he was entitled to absolute
discharge on constitutional speedy trial grounds. Accordingly,
we affirm in part, and in part dismiss.
Affirmed in part, and in part dismissed.
Heavican, C.J., not participating.