State v. Abernathy, 310 Neb. 880

Kyle S. Abernathy was charged with first-degree sexual assault on Sept. 10, 2019; multiple pretrial motions and a defense continuance were filed.
The district court sua sponte continued the March 18, 2020 trial date because of COVID-19 developments and later issued additional continuances cancelling in-person hearings.
The court set a new jury trial date in September 2020; Abernathy filed a motion for absolute discharge (Aug. 31, 2020) claiming statutory and constitutional speedy-trial violations.
At a Sept. 29, 2020 hearing, the district court took the motion under advisement; the State then moved to establish good cause and offered pandemic-related orders and public-health evidence.
The district court reopened the record, accepted the COVID-19 evidence, found March 18–July 1, 2020 excluded for good cause under Neb. Rev. Stat. § 29-1207(4)(f), concluded the statutory speedy-trial deadline had not passed, and denied discharge.
The Nebraska Supreme Court affirmed the statutory-speedy-trial ruling but dismissed Abernathy’s constitutional-speedy-trial claim for lack of appellate jurisdiction.

Issue	Abernathy's Argument	State's Argument	Held
Whether continuances due to COVID-19 were excludable "for good cause" under § 29-1207(4)(f)	State failed to present good-cause evidence before the discharge motion or, alternatively, the record lacks evidence of good cause; district court lacked jurisdiction to accept post-hearing evidence	Evidence of pandemic orders and public-health restrictions could be presented at the discharge hearing; reopening the record was within court discretion	Court affirmed: continuances Mar. 18–Jul. 1, 2020 were excludable for good cause and statutory deadline not violated
Whether the denial of a motion for discharge on constitutional speedy-trial grounds is immediately appealable	Argued the constitutional claim could be appealed now along with the statutory claim	The constitutional claim is not an order affecting a substantial right in a special proceeding and is not immediately appealable	Court dismissed review of the constitutional speedy-trial claim for lack of appellate jurisdiction

State v. Chase, 964 N.W.2d 254 (Neb. 2021) (evidence of good cause may be presented at a hearing on an absolute-discharge motion)
State v. Brown, 964 N.W.2d 682 (Neb. 2021) (district court did not clearly err finding COVID-related continuances were for good cause)
United States v. MacDonald, 435 U.S. 850 (U.S. 1978) (constitutional speedy-trial denial is not immediately appealable as a right not to be tried)
State v. Lovvorn, 932 N.W.2d 64 (Neb. 2019) (statutory speedy-trial framework and dismissal remedy)
State v. Liming, 945 N.W.2d 882 (Neb. 2020) (method for calculating the statutory six-month speedy-trial deadline)
State v. Wilson, 724 N.W.2d 99 (Neb. Ct. App. 2006) (order denying discharge on constitutional speedy-trial grounds is not an appealable order affecting a substantial right)
State v. Loyd, 696 N.W.2d 860 (Neb. 2005) (standards on when an appeal of a final order permits review of related nonfinal rulings)