Summary
The Nebraska Supreme Court reviewed Kyle S. Abernathy’s appeal from the denial of his motion for absolute discharge based on alleged statutory and constitutional speedy trial violations. The court held that COVID-19-related continuances were properly excluded for good cause under Nebraska’s statutory speedy trial provisions and affirmed the denial of statutory discharge. It dismissed the constitutional speedy trial claim because the pretrial ruling did not affect a substantial right in a special proceeding and was not independently appealable.
Topics
Practice areas
Questions Presented
- Whether the district court erred in finding that pandemic-related continuances were for good cause and therefore excludable under Neb. Rev. Stat. § 29-1207(4)(f).
- Whether the district court lacked jurisdiction or otherwise erred by allowing the State to present additional evidence supporting good cause after Abernathy filed his motion for absolute discharge.
- Whether the Nebraska Supreme Court had appellate jurisdiction to review a pretrial order denying discharge on constitutional speedy-trial grounds when the appeal also included a properly appealable statutory speedy-trial claim.
Holdings
- The district court did not clearly err in finding that the period from March 18 through July 1, 2020, was excluded for good cause under Neb. Rev. Stat. § 29-1207(4)(f), because the COVID-19 public-health emergency and related restrictions effectively prevented the holding of jury trials.
- The district court had jurisdiction to reopen the record and receive additional evidence concerning good cause before ruling on the motion for absolute discharge.
- A pretrial order denying a motion for discharge on constitutional speedy-trial grounds does not affect a substantial right in a special proceeding under Neb. Rev. Stat. § 25-1902(1)(b) and is not immediately appealable.
- The court could not review the constitutional speedy-trial claim merely because it was joined in the same appeal with an appealable statutory speedy-trial ruling.
Key quotations
“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).” (at 891)
“As we have said on many occasions, “the constitutional right to a speedy trial and the statutory implementation of that right exist independently of each other.”” (at 894)
“Accordingly, we affirm in part, and in part dismiss.” (at 895)
Factual background
Abernathy was charged on September 10, 2019, with one count of first degree sexual assault. Trial was continued several times, including continuances entered sua sponte in March and April 2020 because of the COVID-19 public-health emergency and resulting restrictions on jury trials and public gatherings. After the State presented evidence concerning pandemic-related restrictions, the district court found the relevant delay excludable for good cause under Neb. Rev. Stat. § 29-1207(4)(f), denied Abernathy's motion for absolute discharge, and concluded that time remained on the statutory speedy-trial clock.
Procedural history
Abernathy was charged by information with first degree sexual assault. After multiple continuances, including continuances during the COVID-19 pandemic, he moved for absolute discharge on statutory and constitutional speedy-trial grounds. The district court found sufficient excluded time, including pandemic-related delay for good cause, denied discharge, and rejected the constitutional claim. The Nebraska Supreme Court affirmed the statutory speedy-trial ruling but dismissed the constitutional speedy-trial portion of the appeal for lack of appellate jurisdiction.