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311 Nebraska Reports

STATE v. MOODY

Cite as 311 Neb. 143

State of Nebraska, appellee, v. 

David J. Moody, appellant.

___ N.W.2d ___

Filed March 11, 2022. No. S-21-303.

1. Constitutional Law: Speedy Trial: Final Orders. 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).

2. 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.

3. Speedy Trial: Proof. When calculating the time for speedy trial purposes, the State bears the burden to show, by a preponderance of the 

evidence, the applicability of one or more of the excluded time periods 

under Neb. Rev. Stat. § 29-1207(4) (Reissue 2016).

4. Speedy Trial: Good Cause: Words and Phrases. “Good cause,” for 

purposes of Neb. Rev. Stat. § 29-1207(4)(f ) (Reissue 2016), means a 

substantial reason and one that affords a legal excuse.

5. Good Cause: Proof. Good cause is a factual question dealt with on a 

case-by-case basis. A trial court’s good cause findings must be supported 

by evidence in the record, and the State bears the burden of establishing 

facts showing that good cause existed.

6. Speedy Trial: Good Cause. When a trial court relies on Neb. Rev. Stat. 

§ 29-1207(4)(f ) (Reissue 2016) to exclude time from the speedy trial 

calculation, a general finding of “good cause” will not suffice. Instead, 

the court must make specific findings as to the good cause which 

resulted in the delay.

7. Speedy Trial: Good Cause: Appeal and Error. An appellate court 

will give deference to a trial court’s factual findings as to good cause 

under Neb. Rev. Stat. § 29-1207(4)(f ) (Reissue 2016) unless they are 

clearly erroneous.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

05/20/2022 09:07 AM CDT
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8. Speedy Trial: Good Cause. Evidence of good cause is properly presented at the hearing on the motion for absolute discharge and need 

not be articulated at the time of the trial court’s sua sponte order delaying trial.

9. Speedy Trial: Good Cause: Appeal and Error. In determining whether 

the trial court clearly erred in finding good cause after a hearing on a 

motion for discharge, an appellate court looks not just to the evidence 

presented at the hearing on the motion for discharge, but to the whole of 

the record.

10. Speedy Trial. The only timing requirement implicit in Neb. Rev. Stat. 

§ 29-1207(4)(f) (Reissue 2016) is that the substantial reason affording a 

legal excuse objectively existed at the time of the delay.

11. ____. To calculate the time for statutory speedy trial purposes, a court 

must exclude the day the complaint was filed, count forward 6 months, 

back up 1 day, and then add any time excluded under Neb. Rev. Stat. 

§ 29-1207(4) (Reissue 2016) to determine the last day the defendant can 

be tried.

12. Speedy Trial: Good Cause. When a court makes a finding of “good 

cause” under Neb. Rev. Stat. § 29-1207(4)(f) (Reissue 2016), the court 

is required to make specific findings as to the cause or causes of such 

extensions and the period of extension attributable to such causes.

Appeal from the District Court for Douglas County: Thomas 

A. Otepka, Judge. Affirmed in part, and in part dismissed.

Thomas C. Riley, Douglas County Public Defender, and 

Jessica C. West for appellant.

Douglas J. Peterson, Attorney General, and Stacy M. Foust 

for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Miller-Lerman, J.

NATURE OF CASE

David J. Moody appeals the order of the district court 

for Douglas County which overruled his motion for absolute 

discharge wherein he alleged violations of his statutory and 

constitutional rights to speedy trial. Moody claims on appeal 

that the district court erred when it found that the continuances 
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Cite as 311 Neb. 143

that the district court ordered resulted from the COVID-19 

pandemic and were for “good cause” and, as a consequence, 

should be excluded from the calculation of the time for bringing him to trial. He contends that good cause was not shown 

and also that the evidence fails to show why his case was continued when other criminal trials were being held in the court. 

As explained below, we affirm in part, and in part dismiss.

STATEMENT OF FACTS

On May 15, 2020, the State filed an information charging 

Moody with domestic violence assault in the third degree, second offense, and strangulation, both Class IIIA felonies under 

Neb. Rev. Stat. §§ 28-323(1) and (4) and 28-310.01(1) and (2) 

(Reissue 2016). Three continuances were ordered. Below, we 

briefly describe the continuance orders and thereafter describe 

each one in detail. The trial was originally set for November 9, 

but the district court held a rescheduling hearing on November 

6, and on November 10, the court entered an order continuing 

the trial until January 20, 2021. Trial did not commence on 

January 20; instead, the court set a rescheduling hearing for 

that date, and Moody requested that the hearing be moved to 

January 25. On January 25, the court held the rescheduling 

hearing and announced that it would continue the trial until 

March 17. The order for the second continuance was filed on 

February 2. On March 16, the court held a rescheduling hearing on its own motion and, at that hearing, stated that it would 

continue trial until April 14. The order for the third continuance was filed on March 18. At each of the rescheduling hearings, the court received into evidence an affidavit of the court’s 

bailiff in which the bailiff stated, inter alia, that the next available jury trial date to set Moody’s trial was the date to which 

the court continued the trial. In each of the three orders contin

uing the trial, the district court made a finding that the period 

of delay resulting from the continuance should be excluded in 

calculating the time for trial for good cause shown pursuant to 

Neb. Rev. Stat. § 29-1207(4)(f ) (Reissue 2016).
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In the first continuance order, announced on November 6, 

2020, and filed on November 10, the court cited an October 

21 order issued by the presiding judge of the district court for 

Douglas County which stated that because of reasons related 

to the COVID-19 pandemic and the district court’s efforts to 

mitigate the effects of the pandemic, the number of criminal 

jury trials held during the November 2020 term would be limited to 24, and that all other criminal cases scheduled for that 

month should be continued “for good cause pursuant to Neb. 

Rev. Stat. Sec. 29-1207(4)(f )” to the next available trial date 

for the assigned judge. The next available date for the judge 

in this case was January 20, 2021, and the court ordered this 

case to be scheduled for that date “as back-up.” The court 

attached the presiding judge’s October 21 order to its order, 

and the presiding judge’s order stated, inter alia, that holding 

additional trials at that time “would be impossible due to the 

ongoing social distancing restrictions for the public,” because 

there was not “space available to accommodate any additional 

jury trials while at the same time maintaining social distancing restrictions.”

In the second continuance order, announced on January 25, 

2021, and filed on February 2, the court cited a December 11, 

2020, order issued by the presiding judge of the district court 

for Douglas County which ordered that for reasons related to 

the COVID-19 pandemic, all criminal cases scheduled for the 

January and February 2021 terms be continued “for good cause 

pursuant to Neb. Rev. Stat. Sec. 29-1207(4)(f )” to the next 

available trial date for the assigned judge. The next available 

trial date for the judge assigned to this case was March 17, and 

the court ordered this case to be scheduled for that date “as 

back-up.” The court attached the presiding judge’s December 

11, 2020, order, and it stated, inter alia, that there had been 

a “resurgence of the COVID-19 pandemic within Douglas 

County, Nebraska” that was “more severe . . . than it has been 

since its inception” and that “jury trials during this spike in 

the COVID-19 pandemic pose a clear and present danger to 
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the members of the public, participants in the judicial process, 

Douglas County Sheriff Deputies, law enforcement officers, 

attorneys, court staff, Judges, and all potential jurors.”

In the third continuance order, announced March 16, 2021, 

and filed March 18, the court cited a January 29 order issued 

by the presiding judge of the district court for Douglas County 

which ordered that for reasons related to the COVID-19 pandemic, a limited number of criminal cases should be scheduled 

for the March 2021 term and that all other criminal cases should 

be continued “for good cause pursuant to Neb. Rev. Stat. Sec. 

29-1207(4)(f )” to the next available trial date for the assigned 

judge. The next available trial date for the judge assigned to 

this case was April 14, and the court ordered that this case 

be scheduled for that date. The court attached the presiding 

judge’s January 29 order, which referred to the district court’s 

“inability to safely call and retain an adequate cross-section of 

jurors” and stated that as a consequence, “the backlog of criminal and civil cases requesting jury trials has increased.” The 

presiding judge’s order listed the specific criminal cases that 

would take place in the district court during the March 2021 

panel, and Moody’s case was listed as one of several cases that 

would be on “[b]ack-up” to the one case that was to be held by 

the judge assigned to Moody’s case.

Moody filed a motion to discharge on speedy trial grounds 

on March 31, 2021. He asserted violations of his statutory right 

to trial within 6 months under § 29-1207 and Neb. Rev. Stat. 

§ 29-1208 (Reissue 2016) and of his right to a speedy trial 

under the federal and Nebraska Constitutions. In the motion, 

Moody stated that excluding 1 day attributed to a discovery 

motion he filed, he should have been brought to trial on or 

before November 16, 2020. Moody contended that the delays 

related to the continuances ordered by the court should not 

have been excluded. He generally contended that some criminal trials were held during the period in which his case had 

been continued, and he asserted that the court set forth no 

reason why the trial of his case in particular could not be held 

when others were being held.
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At a hearing on the motion to discharge, the district court 

received evidence offered by the State, including the affidavit of the bailiff for the trial judge in this case. The bailiff 

stated in the affidavit, inter alia, that there had been “several 

months where jury trials were not empaneled, because of the 

pandemic” and that when jury trials resumed in March 2021, 

each judge “was allotted one day for a criminal jury trial to 

be empaneled for that month.” The bailiff also stated that on 

the date in March 2021 assigned to the judge in this case, a 

jury was empaneled for a criminal case that “had been bound 

over in the district court since March 7, 2019.” The bailiff also 

stated that the judge’s “next allotted jury trial date is April 14, 

2021,” and that Moody’s case was “scheduled as the primary 

case that day.” The evidence offered by the State also included 

several orders of the district court, including the three orders 

of continuance. The court also took judicial notice of the files 

in this case. Moody offered into evidence the affidavit of an 

attorney who represented a defendant in a criminal jury trial 

that took place in March 2021; the State objected based on 

relevance, and the court sustained the objection.

In an order filed April 9, 2021, the court overruled Moody’s 

motion to discharge. The court first agreed with Moody’s calculation that the 1-day delay caused by Moody’s discovery 

motion extended the speedy trial time to November 16, 2020, 

and it stated that the parties agreed that the original trial date 

of November 9 was within the statutory speedy trial deadline. However, the court also found that there were additional 

excludable periods based on its three orders continuing the 

trial: first, until January 20, 2021, then to March 17, and then 

to April 14.

The court noted that in each of those orders, it had found 

that the delays caused by the continuances were excludable 

for good cause pursuant to § 29-1207(4)(f ). The court rejected 

Moody’s argument that the continuances were not shown to 

be for good cause. Moody had contended that “there [was] 

not enough evidence to establish why his case was not called 
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before others or why more efforts could not have been made 

to get his case to trial despite there being a global pandemic.” 

The court found that the evidence presented by the State and 

the evidence it considered by judicial notice answered Moody’s 

concerns regarding efforts to bring his case to trial and the 

reasons it could not be scheduled for trial. The court reviewed 

evidence, notably the affidavit of the court’s bailiff and the 

orders of the presiding judge. The court found that the evidence showed that “it was not possible to take this particular 

case to trial between November 2020 and April 2021, because 

of the COVID-19 pandemic.” The court stated that “the presiding judge continued jury trials and this [c]ourt followed 

those orders.” The court found that “the COVID-19 pandemic 

is sufficient good cause to toll the speedy trial clock in this 

case.” The court therefore found that under the speedy trial 

statute, the period of delay caused by the three continuances 

was excludable for good cause, and it concluded that Moody’s 

motion for discharge based on statutory speedy trial rights 

should be overruled.

The court also considered Moody’s constitutional right to 

speedy trial. The court stated that at the hearing, Moody 

focused on the statutory right and provided no argument or 

authority to support a constitutional claim. Nevertheless, 

the court considered factors set forth in case law regarding 

the constitutional right, and it concluded that this was not the 

“unusual case” in which there was no violation of the statutory 

right to speedy trial but there was a constitutional speedy trial 

violation. The court therefore overruled Moody’s motion to 

discharge in its entirety.

Moody appeals the district court’s order which overruled his 

motion for discharge.

ASSIGNMENTS OF ERROR

Moody claims that the district court erred when it overruled 

his motion for discharge. Moody contends that the contin

uances were not shown to be for good cause and that therefore, 
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his statutory right to speedy trial was violated. He further 

claims that the court erred when it failed to make specific findings as to the cause or causes of the extensions of his trial date 

beyond 6 months and the period of extension attributable to 

each of such causes.

[1] Moody also claims that the delays violated his federal 

and state constitutional rights to speedy trial. As we recently 

held in State v. Abernathy, 310 Neb. 880, 891, ___ N.W.2d 

___, ___ (2022), “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)],” and therefore that issue is not reviewable in the interlocutory appeal 

of an order overruling a motion for discharge on statutory 

speedy trial grounds. We therefore lack appellate jurisdiction 

to review Moody’s claim that he was entitled to absolute discharge on constitutional speedy trial grounds, and we dismiss 

that part of the appeal.

STANDARD OF REVIEW

[2] 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. Brown, 310 Neb. 224, 964 N.W.2d 

682 (2021).

ANALYSIS

Moody claims that the district court erred when it found 

that the continuances ordered by the court were for good cause 

under § 29-1207(4)(f ). He repeats the argument that he made 

to the district court that there was no showing why his case 

in particular could not have been tried when other trials were 

being held during the months at issue. Moody also claims 

that the court’s order overruling his motion for discharge did 

not include specific findings as required by our holding in 

State v. Alvarez, 189 Neb. 281, 292, 202 N.W.2d 604, 611 

(1972), that when a court makes a finding of “good cause” 
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under § 29-1207(4)(f ), the court is “required to make specific 

findings as to the cause or causes of such extensions and the 

period of extension attributable to such causes.”

We first review standards regarding statutory speedy trial 

rights and good cause for delays. Applying those standards, 

we conclude that the court’s finding that the continuances 

were for good cause was not clearly erroneous and that the 

court’s order was sufficiently specific regarding the periods 

of delay occasioned by its continuances and the causes of 

such continuances.

Standards Governing Speedy 

Trial and Good Cause.

The statutory right to a speedy trial is set forth in §§ 29-1207 

and 29-1208. Section 29-1208 provides that if a defendant is 

not brought to trial within the time provided for in § 29-1207, 

as extended by excluded periods, the defendant will be entitled to absolute discharge from the charged offense. Under 

§ 29-1207(1), “[e]very person indicted or informed against 

for any offense shall be brought to trial within six months, 

and such time shall be computed as provided in this section.” 

Section 29-1207(2) generally provides that the “six-month 

period shall commence to run from the date the indictment is 

returned or the information filed.” Certain periods of delay are 

excluded from the speedy trial calculation. As relevant to this 

case, § 29-1207(4)(f ) provides that other periods of delay not 

specifically enumerated in the statute may be excluded in the 

speedy trial computation, “but only if the court finds that they 

are for good cause.”

[3-5] The State bears the burden to show, by a preponderance of the evidence, the applicability of one or more of the 

excluded time periods under § 29-1207(4). State v. Brown, 

supra. “Good cause,” for purposes of § 29-1207(4)(f ), is not 

defined by statute, but we have found it fitting to apply the 

meaning for “good cause” that we have used in other contexts, 

which is that “good cause” means a substantial reason and 
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one that affords a legal excuse. State v. Brown, supra. We have 

also recognized that good cause is a factual question dealt 

with on a case-by-case basis. Id. A district court’s good cause 

findings must be supported by evidence in the record, and as 

noted, the State bears the burden of establishing facts showing 

that good cause existed. Id.

[6,7] When a trial court relies on § 29-1207(4)(f ) to exclude 

time from the speedy trial calculation, a general finding of 

“good cause” will not suffice. State v. Brown, 310 Neb. 224, 

964 N.W.2d 682 (2021). Instead, the court must make specific 

findings as to the good cause which resulted in the delay. Id. 

An appellate court will give deference to such factual findings 

unless they are clearly erroneous. Id.

[8] In State v. Chase, 310 Neb. 160, 168, 964 N.W.2d 254, 

261 (2021), we stated that a continuance by the court’s own 

motion, or “judicial delay,” does not toll the speedy trial statute 

“absent a showing by the State of good cause” and that “when 

a trial court relies on § 29-1207(4)(f ) to exclude time from the 

speedy trial calculation, it must make specific findings as to the 

good cause which resulted in the delay.” The continuances in 

Chase were ordered in response to the COVID-19 pandemic, 

but the defendant did not specifically argue on appeal that the 

evidence in the record pertaining to the COVID-19 pandemic 

failed to provide good cause for the delays resulting from the 

court’s sua sponte orders. Instead, the defendant’s challenge on 

appeal was to the timing of the presentation of the evidence 

supporting good cause and of the court’s articulation on the 

record of the reasons the delays were for good cause. We held 

that the evidence of good cause is properly presented at the 

hearing on the motion for absolute discharge and need not be 

articulated at the time of the court’s sua sponte order delaying 

trial. Chase, supra. We reasoned in Chase that “[w]ithout a 

motion for absolute discharge under [§ 29-1208], a defendant 

waives the statutory right to a trial within 6 months and no evidentiary showing of good cause is necessary at all.” 310 Neb. 

at 172, 964 N.W.2d at 263.
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[9,10] With regard to our review of a trial court’s finding 

that a judicial delay was for good cause, we stated in Chase, 

supra, that in determining whether the trial court clearly erred 

in finding good cause after a hearing on a motion for discharge, 

we look not just to the evidence presented at the hearing on 

the motion for discharge, but to the whole of the record. The 

only timing requirement implicit in § 29-1207(4)(f ) is that the 

substantial reason affording a legal excuse objectively existed 

at the time of the delay. Chase, supra. In the present case, the 

district court has assisted our review by making findings at the 

time of each of the three continuances.

[11] To calculate the time for statutory speedy trial purposes, “a court must exclude the day the complaint was filed, 

count forward 6 months, back up 1 day, and then add any 

time excluded under § 29-1207(4) to determine the last day 

the defendant can be tried.” Brown, 310 Neb. at 233, 964 

N.W.2d at 689 (internal quotation marks omitted). Applying 

this formula, the State and Moody agree that based on the 

filing of the information on May 15, 2020, and the exclusion 

of 1 day for Moody’s discovery motion, the last day for trial 

in the absence of all good cause continuances would have 

been November 16. Trial was originally set to begin prior to 

that date, on November 9. However, the parties differ on how 

much time, if any, should have been excluded from the statutory speedy trial calculation for the delay caused by the court’s 

continuance of the trial from November 9 to January 20, 2021, 

then to March 17, and finally to April 14. We next consider 

this disagreement.

District Court’s Finding That COVID-19 Pandemic 

and Restrictions and Limitations Related 

Thereto Established Good Cause for 

the Delay of Moody’s Trial.

The district court in this case found that “the COVID-19 

pandemic [was] sufficient good cause” and that therefore, 

the entire period of delay pursuant to its three continuance 

orders “constitute[d] an excludable period of delay pursuant to 
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§ 29-1207(4)(f ).” The court stated that the record in this case 

was “replete with explanation that it was not possible to take 

this particular case to trial between November 2020 and April 

2021, because of the COVID-19 pandemic.” As explained 

below, we agree with the court’s assessment of good cause; 

its decision that the period of the continuances was excludable 

was not clearly erroneous.

In State v. Brown, 310 Neb. 224, 964 N.W.2d 682 (2021), 

the defendant challenged the district court’s finding that 

delays occasioned by the COVID-19 pandemic were for good 

cause for statutory speedy trial purposes. We concluded that 

“[c]onsidering the evidence that was presented at the hearing 

on the motion to discharge and the facts of which the district 

court properly took judicial notice, . . . the district court’s 

finding of good cause for the continuances when made was 

not clearly erroneous.” Id. at 238, 964 N.W.2d at 692. We 

reasoned that the circumstances entailed by the pandemic 

were such that the court could find “good cause” in the sense 

of “a substantial reason . . . that affords a legal excuse.” Id. 

(internal quotation marks omitted). In support of our conclusion in Brown, we cited U.S. v. Olsen, 995 F.3d 683, 693 (9th 

Cir. 2021), in which the Court of Appeals for the Ninth Circuit 

applied the federal Speedy Trial Act and its exclusion of time 

for “ends of justice” and stated that “surely a global pandemic 

. . . falls within such unique circumstances to permit a court to 

temporarily suspend jury trials in the interest of public health.” 

We note for completeness that the opinion in Olsen has now 

been amended and superseded by the opinion in U.S. v. Olsen, 

21 F.4th 1036 (9th Cir. 2022), in which petitions for panel 

rehearing and rehearing en banc were denied. However, the 

language we quoted from the original opinion remains in the 

amended opinion.

Our opinion in Brown provides precedent that as a general matter, the COVID-19 pandemic and the public health 

interests related thereto may provide good cause. However, 

in Brown, we were careful to state that our determination in 
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that case that good cause was shown “considers the context 

of the COVID-19 pandemic circumstances and conditions that 

existed at the time the continuances were ordered.” 310 Neb. at 

238, 964 N.W.2d at 692. Brown involved continuances ordered 

between March and August 2020, and our determination in 

Brown was based on the specific context and circumstances in 

existence at those times.

The present case involves continuances ordered at a later 

time, specifically between November 2020 and April 2021, 

when the record shows that circumstances and conditions of the 

pandemic were different. In Brown, the continuances occurred 

in a time when the court was holding no trials, and during part 

of the period of delay in this case, the district court for Douglas 

County was holding no trials. However, during at least part of 

the time when continuances were ordered in this case, the court 

had resumed holding a limited number of trials.

At the hearing on the motion for discharge in this case, 

the court took judicial notice of the files in this case and it 

also received evidence offered by the State which included 

affidavits of the court’s bailiff and orders filed by the court 

and by the presiding judge of the district court. The court’s 

continuance orders in this case were prompted by the presiding judge’s orders that required judges of this district court 

to limit the number of criminal jury trials and to continue all 

other trials that required a jury. The presiding judge’s orders 

described the specific context and circumstances at the time 

of the delays, noting factors such as “ongoing social distancing restrictions,” lack of space to accommodate multiple jury 

trials while adhering to such restrictions, a “resurgence of the 

COVID-19 pandemic” that was “more severe” than earlier 

times, the “inability to safely call and retain an adequate crosssection of jurors,” and the resulting “backlog of criminal and 

civil cases requesting jury trials.”

The record in this case provides sufficient evidence regarding the context and circumstances that were in existence at 

the specific periods that the continuances were ordered in 
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this case for reasons relating to the COVID-19 pandemic, the 

related public health concerns and restrictions, and the effect 

of the pandemic and related restrictions on the district court’s 

ability to hold jury trials. We discuss the evidence regarding 

the court’s backlog in greater detail below. At this point, we 

note that the record shows that docket congestion had been created by the pandemic, that this judge was permitted to try only 

a limited number of jury cases, and that the judge was directed 

to proceed to trial on a criminal case that had been pending 

significantly longer than Moody’s. Given the facts and circumstances, Moody’s claim that his specific case should have gone 

to trial fails. The State was not obligated to show that convening a jury trial would have been literally impossible. See U.S. 

v. Olsen, 21 F.4th 1036 (9th Cir. 2022). The State’s showing 

was sufficient, and good cause was demonstrated.

We determine that based on the evidence before it at the 

time of Moody’s motion for discharge, the district court did 

not clearly err when it found that the COVID-19 pandemic, 

the public health concerns related thereto, and the restrictions 

on the district court’s ability to carry out jury trials at the 

specific times of the continuances in this case provided good 

cause not to bring this specific case to trial.

District Court’s Findings in Its Order Regarding 

Cause of Continuances and Period of Delay 

Attributable to Such Continuances 

Were Sufficiently Specific.

[12] Moody also claims that the district court’s order was not 

adequately specific. He cites State v. Alvarez, 189 Neb. 281, 

292, 202 N.W.2d 604, 611 (1972), in which we held that when 

a court makes a finding of “good cause” under 29-1207(4)(f ), 

the court is “required to make specific findings as to the cause 

or causes of such extensions and the period of extension attributable to such causes.” With regard to specific findings as 

to the cause or causes, we determine that the district court’s 

order was specific that the causes of the delays were the 
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COVID-19 pandemic and the restrictions related thereto that 

limited the district court’s ability to carry out jury trials.

Moody argues that the findings were not specific enough to 

his particular case, because the court did not make findings why 

his specific case could not be brought to trial when other cases 

were being tried. We note, however, that the district court’s 

order was specific in setting forth the orders of the presiding 

judge that prompted each of the continuances of Moody’s trial. 

The evidence in this case shows that during part of the period 

of delay, there were no trials being held in the district court. At 

other times during that period, only a limited number of jury 

trials were being held and all other cases, including Moody’s, 

were required to be continued.

The presiding judge’s order with regard to March 2021 

shows that the specific judge assigned to this case was limited 

to holding only one criminal jury trial and that several other 

cases, including Moody’s, were in “back-up” status. The affidavit of the bailiff also provided evidence that the one case 

that was heard by the judge in March 2021 had been pending in the district court since March 2019 as compared to the 

information against Moody which was filed on May 15, 2020. 

We think that the district court’s order was adequately specific 

that Moody’s case was being continued because of restrictions 

required by the pandemic and by the presiding judge’s orders 

permitting only a limited number of specified jury trials to be 

held, while other trials, including Moody’s, were required to 

be continued in order to comply with restrictions in the limited 

space available.

Moody also argues the order was not sufficiently specific 

regarding the period of delay attributable to the finding of 

good cause. He argues the court was not specific in identifying the period of delay, including the number of days excluded 

and the last date for which trial could be held for Moody. As 

a general matter, we require a more explicit calculation of 

the speedy trial period to aid our appellate review than that 

which was provided by the court in this case. However, the 
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court’s order in this case was sufficiently clear to show that the 

period that was excluded was sufficient to extend the last date 

for trial past March 31, 2021, when Moody filed his motion 

for discharge.

The court found that “it was not possible to take this particular case to trial between November 2020 and April 2021, 

because of the COVID-19 pandemic.” The court also found 

that the delay caused by “the continuance of the November 

9, 2020 trial date,” the “continuance of the January 20, 2021 

trial date,” and the “continuance of the March 17, 2021 trial 

date” constituted an excludable period of delay pursuant to 

§ 29-1207(4)(f ). As we stated earlier, under State v. Chase, 

310 Neb. 160, 964 N.W.2d 254 (2021), we review a finding 

of good cause based on evidence presented at the hearing on 

a motion for absolute discharge and the whole of the record at 

that time. Therefore, the district court’s finding that the period 

of delay was excludable was made from the perspective of the 

record as it existed at the time of the motion for absolute discharge. From that vantage, the court found that the period of 

delay included the entire time from November 9, 2020, the first 

date set for trial, and April 14, 2021, the date set for trial in the 

last of the continuances.

For completeness, we note that the court stated that the first 

continuance began on November 9, 2020, the date the trial was 

originally scheduled. Moody asserts that the excluded period 

should not start until November 10, when the court filed its 

order, and in contrast, the State asserts that the excludable 

period should start on November 6, which was the date of 

the hearing at which the court announced it would order the 

continuance. We need not resolve the “correct day-one issue” 

because it is of no consequence in this case.

Moody filed his motion for discharge on March 31, 2021. 

The excludable period of delay related to the continuances 

began before November 16, 2020, which otherwise would have 

been the last day for trial, and continued to April 14, 2021, 

the date set for trial in the last continuance. Because the last 
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date of the period excluded was April 14, it is clear that the 

period of exclusion was of sufficient duration that the last date 

for trial was no earlier than April 14. Therefore, when Moody 

filed his motion for discharge on March 31, the statutory time 

for speedy trial had not ended. We therefore determine that the 

district court’s order was sufficiently specific regarding the 

period of delay, and on appeal, it is clear that the motion 

for discharge was filed before the last day for trial under the 

speedy trial statute.

CONCLUSION

The district court’s order was sufficiently specific regarding 

the causes of the delay and the period of delay, and the court’s 

finding that Moody’s case should not be dismissed on statutory 

speedy trial grounds was not clearly erroneous. We therefore 

determine that the district court did not err when it overruled 

Moody’s motion for discharge based on statutory speedy trial 

grounds, and we affirm the district court’s order in this respect. 

We lack appellate jurisdiction to review Moody’s claim that he 

was entitled to absolute discharge on constitutional speedy trial 

grounds, and we therefore dismiss that part of the appeal.

Affirmed in part, and in part dismissed.