State v. Dolinar: Permanent Waiver of Nebraska’s Statutory Speedy-Trial Right by Defense-Requested Continuance & Expanded Use of Judicial Notice

Introduction

On 25 July 2025, the Nebraska Supreme Court decided State v. Dolinar, 319 Neb. 565, a case that clarifies two significant procedural doctrines in Nebraska criminal practice:

1. When and how a defendant permanently waives the statutory speedy-trial right under Neb. Rev. Stat. § 29-1207(4)(b).
2. The trial court’s authority to take judicial notice of its own files and records to establish excludable periods for speedy-trial computations, together with the State’s evidentiary obligations.

The decision strengthens earlier precedent (notably State v. Mortensen) while providing new, more detailed guidance on prosecutorial and judicial duties when litigating motions for discharge under § 29-1208.

Case Overview

Background Facts

• Jacob Edward Dolinar was charged in Buffalo County with multiple drug offenses. The State filed an Information on 16 November 2021.
• Throughout 2022, several defense motions were filed, including a continuance request on 25 March 2022 that moved a trial date beyond the six-month statutory period.
• Dolinar later filed a plea in bar; its denial led to an interlocutory appeal which he lost. The mandate returned to the district court on 16 October 2023.
• On remand the district court re-set trial for 24 June 2024. One week before, on 17 June 2024, Dolinar moved for absolute discharge citing speedy-trial violations.

Key Legal Issue

Whether the statutory six-month clock in § 29-1207 had expired—entitling Dolinar to discharge—or whether any periods were excludable or waived, especially (i) the continuance he himself requested, and (ii) the time consumed by the interlocutory appeal.

Summary of the Judgment

The Nebraska Supreme Court affirmed the district court’s denial of discharge, holding that:

1. § 29-1207(3)’s “tried again” language does not restart the six-month clock when a defendant pursues an interlocutory appeal before the first trial begins.
2. Under § 29-1207(4)(b), a defendant “is deemed to have waived” the statutory speedy-trial right when his or her own continuance moves the trial date beyond the six-month threshold. Dolinar’s 25 March 2022 continuance permanently waived the right.
3. The trial court may rely on judicial notice of its files and records to calculate excludable periods; such notice is “sufficient evidence” when the chronology is undisputed.
4. The State, however, remains responsible for itemizing each excludable period and demonstrating the remaining time to try the defendant.

Detailed Analysis

1. Precedents Cited & Their Influence

• State v. Mortensen, 287 Neb. 158 (2014): First interpreted the 2010 amendment adding waiver language to § 29-1207(4)(b). Dolinar extends Mortensen by applying the waiver to a traditional continuance (rather than a motion for discharge) that pushed the trial outside six months.
• State v. Baker, 264 Neb. 867 (2002): Clarified that § 29-1207(3) does not apply to interlocutory appeals taken before trial. The Court reaffirmed this holding.
• State v. Lear (2024), State v. Miller (2024), State v. Space (2022), State v. Riessland (2021): Recent glosses on the waiver provision and the meaning of “continuance.” The Court cites and integrates their reasoning to solidify a cohesive line of authority.
• Older cornerstone cases—State v. Williams (2009), State v. Jones (1981), and State v. Alvarez (1972)—inform the mathematical method for computing six months and the need for “specific findings.”

2. Court’s Legal Reasoning

a. Interlocutory Appeal Does Not Reset the Clock

Section 29-1207(3) uses the phrase “tried again,” which—per Baker—only applies when a first trial has already occurred. Because Dolinar never reached trial, his interlocutory appeal did not restart the statutory period.

b. Waiver through Defense-Requested Continuance

The Court emphasized legislative intent: to prevent defendants from gaining a sword from the shield of speedy-trial protection. When a defendant asks to postpone a trial that is otherwise timely—and that postponement pushes the date past six months—the statute deems the right permanently waived. This is a categorical rule; the Court applied it even though the State failed to highlight the continuance below.

c. Judicial Notice as Evidentiary Support

Building on In re Estate of Radford (2017) and earlier speedy-trial cases, the Court held that:

• Court files and docket entries are adjudicative facts “not subject to reasonable dispute” and thus proper for judicial notice under Neb. Evid. R. 201.
• When such records alone establish the chronology, judicial notice is sufficient proof of excludable periods.
• Nevertheless, prosecutors should formally identify each excludable block of time and the remaining days—codifying a “best practice” for future litigation.

3. Impact on Future Litigation

The decision’s ramifications are twofold:

1. Strengthened Waiver Doctrine. Defense counsel must exercise caution: any continuance (or discharge motion) that shifts the trial outside the six-month window irrevocably forfeits the client’s statutory protection. The ruling leaves little room for equitable exceptions.
2. Procedural Blueprint for Courts & Prosecutors. The opinion supplies explicit guidance on: (a) how judicial notice may substitute for live evidence, and (b) the State’s mandatory role in “walking the court” through each exclusion. Failure to do so may still doom future cases, even though the omission was inconsequential here.

Complex Concepts Simplified

• Statutory vs. Constitutional Speedy-Trial Right
  Nebraska’s six-month rule is statutory (§ 29-1207); it sits beside, but is distinct from, the Sixth-Amendment constitutional guarantee. Waiving one does not automatically waive the other, though constitutional claims are tougher to win.
• “Continuance” under § 29-1207(4)(b)
  Any postponement—whether styled “motion to continue,” “motion to discharge,” “discovery request,” or other—counts if it moves the trial beyond the statutory deadline.
• “Excludable Period” (§ 29-1207(4)(a))
  Time consumed by motions, competency hearings, or interlocutory appeals is tolled (not counted) against the six months but does not waive the right. Waiver arises only under (4)(b).
• Judicial Notice
  A shortcut allowing courts to accept certain indisputable facts (e.g., dates stamped on filings) without formal proof, provided those facts derive from sources that “cannot reasonably be disputed.”

Conclusion

State v. Dolinar reinforces and refines Nebraska speedy-trial jurisprudence. The permanent-waiver rule under § 29-1207(4)(b) is now unequivocal: if the defense seeks—for any reason—a continuance that shifts trial beyond the six-month horizon, the statutory right evaporates. At the same time, the Court underscores that judicial notice of court records suffices to prove excludable periods, though the burden remains on the State to articulate them.

Practitioners should treat continuance requests as a high-stakes decision, and prosecutors must meticulously docket and recount every period of delay. Trial judges, for their part, must continue to advise defendants of their rights and record explicit waivers whenever a continuance threatens the statutory limit. Overall, Dolinar cements procedural clarity while preserving the statute’s policy balance between defendants’ rights and the public interest in efficient criminal justice.