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Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

STATE v. COOMES

Cite as 309 Neb. 749

State of Nebraska, appellee, v. 

Keith P. Coomes, appellant.

___ N.W.2d ___

Filed July 23, 2021. No. S-20-720.

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: Appeal and Error. Under a clearly erroneous standard of 

review, an appellate court does not reweigh the evidence but considers 

the judgment in a light most favorable to the successful party, resolving 

evidentiary conflicts in favor of the successful party, who is entitled to 

every reasonable inference deducible from the evidence.

3. Appeal and Error. Plain error exists where there is an error, plainly 

evident from the record but not complained of at trial, which prejudicially affects a substantial right of a litigant and is of such a nature that 

to leave it uncorrected would cause a miscarriage of justice or result in 

damage to the integrity, reputation, and fairness of the judicial process.

4. Criminal Law: Trial: Evidence: Proof. Trial courts have discretion 

regarding the order of proof, even in criminal cases.

5. Trial: Evidence: Proof. The order in which evidence is presented generally does not affect the burden of proof.

6. ____: ____: ____. The order of proof is a rule of practice, not of law, 

and departures are allowed whenever the court considers them necessary 

to promote justice, so long as the trial court does not place the burden of 

proof on the wrong party.

7. Trial: Evidence: Proof: Appeal and Error. Error ordinarily cannot be 

successfully asserted on account of any irregularity in the order of proof 

unless prejudice is shown.

8. Speedy Trial: Evidence: Proof. To meet its burden of proving excludable time under Neb. Rev. Stat. § 29-1207(4), the State is entitled to rely 

on evidence offered by the defendant and received by the court.

Nebraska Supreme Court Online Library

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

08/20/2021 12:09 AM CDT
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9. Speedy Trial. To calculate the 6-month speedy trial period under Neb. 

Rev. Stat. § 29-1207 (Reissue 2016), 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.

10. ____. The 6-month period within which an accused is to be brought to 

trial refers to a period of 6 calendar months, not 180 days.

11. Speedy Trial: Motions for Mistrial. Once a mistrial is granted, the 

speedy trial clock is restarted, and the 6-month speedy trial period commences to run from the date of the mistrial.

12. Speedy Trial. The primary burden is on the State to bring an accused 

person to trial within the time provided by law.

13. Speedy Trial: Proof. When a motion for absolute discharge is filed, the 

State bears the burden to show, by the greater weight of the evidence, 

the applicability of one or more of the excluded time periods under Neb. 

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

14. 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, one that affords a legal excuse; it is a factual question 

dealt with on a case-by-case basis.

15. Good Cause: Proof. A district 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.

16. Speedy Trial: Good Cause: Appeal and Error. 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, and an appellate court will give deference to such factual findings unless they are clearly erroneous.

17. Speedy Trial: Words and Phrases. For purposes of the speedy trial calculation, there is no meaningful distinction between the phrases “period 

of time” and “period of delay.”

18. ____: ____. Because a period of delay is generally synonymous with a 

period of time, excludable periods can result from delays in the progression of a criminal case regardless of whether the trial date was postponed or remained unchanged.

19. Speedy Trial: Appeal and Error. In an appeal from the denial of a 

motion for absolute discharge, the State as appellee does not request 

affirmative relief by arguing that additional periods of delay, which 

were neither considered nor ruled upon by the district court, are also 

properly excludable.
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STATE v. COOMES

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20. Speedy Trial: Motions for Continuance. Excludable time for a continuance begins the day after the continuance is granted and includes the 

day on which the continuance ends.

Appeal from the District Court for Dawes County: Travis P. 

O’Gorman, Judge. Affirmed.

Amy L. Patras and Andrew M. Pope, of Crites, Shaffer, 

Connealy, Watson, Patras & Watson, P.C., L.L.O., for appellant.

Douglas J. Peterson, Attorney General, and Jordan Osborne 

for appellee.

Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

Stacy, J.

Keith P. Coomes appeals from the district court’s denial of 

his motion for absolute discharge. Among other things, Coomes 

argues the court impermissibly shifted the burden of proof during the hearing on his motion, and he argues the court erred 

in finding “good cause” under Neb. Rev. Stat. § 29-1207(4)(f ) 

(Reissue 2016) to exclude a period of time immediately following the appointment of replacement defense counsel. Although 

our speedy trial calculations differ somewhat from the trial 

court’s calculations, we agree that Coomes’ statutory speedy 

trial rights were not violated and therefore affirm.

I. BACKGROUND

1. First Trial

On August 9, 2018, the State filed an information in the 

district court for Dawes County, charging Coomes with assault 

in the first degree (a Class II felony) and assault in the third 

degree (a Class I misdemeanor). Coomes retained attorney Jon 

Worthman to represent him.

After several continuances agreed to by the defense, the 

matter came on for jury trial on September 12, 2019. The jury 

found Coomes not guilty on the third degree assault charge, 
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but could not reach a unanimous verdict on the other charge. 

The court therefore accepted the jury’s verdict on the third 

degree assault charge, and it declared a mistrial on the first 

degree assault charge. Later the same day, the court set the 

matter for a status hearing on October 22 to address whether 

the State would seek retrial on the charge of first degree 

assault.

2. Proceedings on Retrial

(a) October 22, 2019, to 

January 17, 2020

At the status hearing on October 22, 2019, defense counsel 

appeared without Coomes and moved to continue the hearing, 

advising that Coomes had been seriously injured in a motorcycle accident and required surgery. The court granted the 

motion and continued the matter to December 10.

At the December 2019 hearing, defense counsel again 

appeared without Coomes and requested another continuance, 

representing that Coomes was still recovering and unable to 

leave his home. The continuance was granted and a status conference was set for January 7, 2020.

At the January 7, 2020, hearing, defense counsel again 

appeared without Coomes and moved to continue because his 

client “still [couldn’t] travel.” The court granted the motion 

and continued the matter for a pretrial hearing on January 17.

No one disputes that the period of delay from October 22, 

2019, to January 17, 2020, was attributable to Coomes for purposes of the speedy trial calculation.

(b) January 17 to February 11, 2020

The pretrial hearing set for January 17, 2020, did not occur. 

Instead, the district court entered an order stating: “This matter comes before the Court on the Court’s own Motion. Jon 

Worthman is removed as counsel for the Defendant. A status 

hearing will be held in this matter on Feb[.] 11, 2020, at 1:00, 

p.m.” The order did not provide a reason for the sua sponte 
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removal of Coomes’ retained counsel, but in a later order, the 

court stated that Worthman had been arrested. 1

(c) February 11 to March 10, 2020

At the status hearing on February 11, 2020, Coomes appeared 

without counsel. On the record, the court informed Coomes 

that Worthman was “no longer practicing” law and asked 

Coomes what he wanted to do about counsel moving forward. 

Coomes indicated he would like the court to consider appointing counsel in this case, as well as in an unrelated criminal 

case he had pending. After obtaining information on Coomes’ 

financial situation, the court stated:

Based on what I know and what you’ve provided to me, 

I will find that you are indigent as that term is defined by 

the law. I will appoint the public defender in both of your 

cases . . . to represent you.

What I will do is I will give her a chance to meet with 

you; become familiar with your files. So I will set a status 

conference on March 10th at one o’clock. So you need to 

be back here that date and time with [the public defender] 

and then it’ll go forward.

Later that same day, the prosecutor and the public defender 

appeared before the court, and the public defender made an 

oral motion to withdraw based on a conflict of interest. The 

court granted the motion and appointed attorney Andrew Pope 

to represent Coomes.

(d) March 10 to April 7, 2020

At the status hearing on March 10, 2020, Coomes was present with his appointed counsel, Pope. The court asked Pope 

whether he had been able to review the file and “get caught 

up.” Counsel replied, “I haven’t, Your Honor.” He explained, 

“I just today had a chance to speak with Mr. Coomes” and 

had just filed motions for discovery and for preparation of 

1 See, generally, State of Nebraska ex rel. Counsel for Dis. v. Worthman, 306 

Neb. 289, 953 N.W.2d 534 (2020).
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the transcript from the original trial. When asked by the court 

whether he would be ready for a pretrial hearing soon, Coomes’ 

counsel replied, “Once I get discovery and have a chance to go 

through that, which I don’t think it would be too much of an 

issue, I could get things moving towards pretrial.” With the 

agreement of the parties, the court set another status hearing 

for April 7, with the expectation that a pretrial date would be 

set at that hearing.

Our record shows the pretrial motions mentioned by 

Coomes’ counsel during the status hearing were filed on March 

10, 2020, and a journal entry dated April 3, 2020, shows the 

motions were granted.

(e) April 7 to May 12, 2020

At the status hearing on April 7, 2020, Coomes appeared by 

telephone and his counsel appeared via video conference. The 

State moved to continue for another status hearing “a month 

down the road,” explaining it had provided the requested discovery in the case to be retried, but had not yet provided the 

requested discovery in Coomes’ other pending criminal case. 

Coomes’ counsel responded, “Judge, that’s fine with me,” and 

the court continued the matter for another status hearing on 

May 12.

(f ) May 12, 2020, Hearing 

and June 9 Pretrial

The status hearing on May 12, 2020, was held via video 

conference. Coomes did not appear for the hearing, and the 

court’s attempts to reach Coomes using the number provided 

by defense counsel were unsuccessful. The hearing proceeded 

without objection, and defense counsel advised the court he had 

spoken with Coomes the day before the hearing and Coomes 

wanted to get the case “scheduled for retrial.” The court set a 

pretrial hearing for June 9 and advised defense counsel that no 

change of plea would be accepted after the pretrial.

At the June 9, 2020, pretrial, all counsel were present and 

Coomes appeared via telephone. After discussing counsel’s 
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availability, the court proposed setting retrial for August 17 

and 18 and using space at the local high school or college 

to allow for social distancing of the jury. After both counsel 

indicated they were available on those dates, the court asked 

Coomes directly, “Does that work for you Mr. Coomes?” 

Coomes replied, “Yes, it does.” The court then set retrial for 

August 17 and 18.

(g) Motion for Absolute Discharge, 

Hearing, and Order

On August 10, 2020, Coomes filed a motion for absolute 

discharge on statutory speedy trial grounds. One week later, 

the court held a hearing on the motion and the following colloquy occurred:

THE COURT: . . . We are set for a motion for absolute 

discharge. [Defense counsel], do you have any evidence?

[Defense counsel]: Yes, Judge. I have three exhibits 

marked Exhibit 5, Exhibit 6, and Exhibit 7. Exhibit 5 that 

I would offer into evidence is a complete transcript of 

proceedings held in this matter since I think the mistrial 

on September 12th.

THE COURT: Any objection to 5?

[Prosecutor]: No, Your Honor.

THE COURT: 5 is received.

[Defense counsel]: Exhibit 6 is an affidavit of counsel 

in support of the discharge. I would offer Exhibit 6.

THE COURT: Any objection to 6?

[Prosecutor]: No, Your Honor.

THE COURT: 6 is received.

. . . .

[Defense counsel]: And then Exhibit 7 is the complete 

court file in CR18-44. I’d offer Exhibit 7 into evidence.

THE COURT: Any objection to 7?

[Prosecutor]: No, Your Honor.

THE COURT: 7 is received.

. . . .
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STATE v. COOMES

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THE COURT: Any evidence from the State?

[Prosecutor]: No, Your Honor.

After hearing argument, the court took the matter under 

advisement. In an order entered September 28, 2020, the district court recited the applicable law, including that it was the 

State’s burden to prove the applicability of any excludable 

periods under § 29-1207(4). The court then overruled Coomes’ 

motion for absolute discharge, reasoning:

[W]ithout any excludable periods, [Coomes] should have 

been brought to trial by March 12, 2020.

The Court finds there to be 163 excludable days. The 

entire time between October 22, 2019 until April 7, 2020 

is excludable time. From October 22, 2019 until at least 

January 17, 2020, the case was continued at [Coomes’] 

request because of his injuries.

Due to the arrest of [Coomes’] original attorney, Mr. 

Pope was appointed to represent [Coomes] on January 17, 

2020. Mr. Pope needed time to be brought up to speed on 

[Coomes’] case to provide him with a proper defense. Mr. 

Pope was up to speed on April 7, 2020. Thus, the time 

between January 17, 2020 until April 7, 2020, is excluded 

for good cause pursuant to Section 29-[1207](4)(f ).

The Court starts the clock again on April 7, 2020. The 

present motion stops the clock again on August 10, 2020. 

State v. Williams, 277 Neb. 133 (2009).

Adding 163 days to the original date of March 12, 

2020, gets us to August 22, 2020. [Coomes’] Motion for 

Absolute Discharge is denied.

Coomes timely appealed, and we moved this case to our 

docket on our own motion.

II. ASSIGNMENTS OF ERROR

Coomes assigns five errors, which we consolidate and 

restate into three. He assigns the district court erred in (1) 

requiring him to produce his evidence in support of absolute 

discharge first, thereby improperly shifting the burden of proof 

from the State to him; (2) finding the State met its burden 
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STATE v. COOMES

Cite as 309 Neb. 749

of proving excludable time when it offered no evidence at 

the hearing; and (3) finding there was “good cause” under 

§ 29-1207(4)(f ) to exclude the time period from January 17 to 

April 7, 2020.

III. STANDARD OF REVIEW

[1,2] 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. 2 Under a clearly erroneous standard of review, an 

appellate court does not reweigh the evidence but considers 

the judgment in a light most favorable to the successful party, 

resolving evidentiary conflicts in favor of the successful party, 

who is entitled to every reasonable inference deducible from 

the evidence. 3

IV. ANALYSIS

1. Burden of Proof

Coomes’ first two assignments of error pertain to the burden of proof. In his first assignment, Coomes argues that 

“the district court should have started the presentation of evidence - the burden of production of evidence - with the State,” 4

but instead “required [him] to produce his evidence in support 

of his Motion for Absolute Discharge” 5 first. Coomes argues 

the order in which evidence was presented impermissibly 

shifted the burden of proof from the State to him. In his second 

assignment, Coomes argues that because the State failed to 

offer any evidence at the hearing, it necessarily failed to meet 

its burden of proving any excludable periods of time. Coomes 

admits he did not raise either of these issues—by objection or 

otherwise—before the district court. He therefore asks that we 

review both assignments for plain error.

2 State v. Jennings, 308 Neb. 835, 957 N.W.2d 143 (2021).

3 State v. Hernandez, ante p. 299, 959 N.W.2d 769 (2021).

4 Brief for appellant at 14.

5 Id.
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Cite as 309 Neb. 749

[3] Plain error exists where there is an error, plainly evident 

from the record but not complained of at trial, which prejudicially affects a substantial right of a litigant and is of such a 

nature that to leave it uncorrected would cause a miscarriage 

of justice or result in damage to the integrity, reputation, and 

fairness of the judicial process. 6 As we explain, on this record 

there is no plain error regarding either the order of proof or the 

burden of proof.

(a) No Plain Error in Order of Proof

[4-7] Nebraska has a statute which sets out the order in 

which evidence should be presented at trial, 7 but we have long 

recognized that trial courts have discretion regarding the order 

of proof, 8 even in criminal cases. 9 Customarily, the party bearing the burden of proof presents its evidence first. 10 But the 

order in which evidence is presented generally does not affect 

the burden of proof. 11 This is so because the order of proof 

is “a rule of practice, not of law, and departures are allowed 

6 State v. Starks, 308 Neb. 527, 955 N.W.2d 313 (2021).

7 See Neb. Rev. Stat. § 29-2016 (Reissue 2016).

8 See, Westgate Rec. Assn. v. Papio-Missouri River NRD, 250 Neb. 10, 

547 N.W.2d 484 (1996) (trial court has discretion to allow introduction 

of evidence in rebuttal which should have been introduced during case in 

chief ); Hyde v. Cleveland, 203 Neb. 420, 279 N.W.2d 105 (1979) (order of 

proof is within trial court’s discretion and irregularity cannot successfully 

be asserted absent prejudice); Berggren v. Hannan, O’Dell & Van Brunt, 

116 Neb. 18, 215 N.W. 556 (1927) (same).

9 See, State v. Osborn, 241 Neb. 424, 490 N.W.2d 160 (1992) (order of 

proof is within discretion of trial court and ruling will not be reversed 

absent prejudice); State v. Adams, 181 Neb. 75, 147 N.W.2d 144 (1966) 

(order of proof is within discretion of trial court); State v. Barr, 90 Neb. 

766, 134 N.W. 525 (1912) (order of proof is within discretion of trial court 

and reviewed for abuse of discretion).

10 See 5 Am. Jur. Trials 505, § 3 at 509-10 (1966) (“[u]nder the normal order 

of proof the party with the burden of proof also has the duty or burden of 

proceeding with the evidence to establish the facts”).

11 See 75 Am. Jur. 2d Trial § 269 (2018).
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whenever the court considers them necessary to promote justice, so long as the trial court does not place the burden of 

proof on the wrong party.” 12 As such, error ordinarily cannot 

be successfully asserted on account of any irregularity in the 

order of proof unless prejudice is shown. 13

On this record, we reject Coomes’ suggestion that the trial 

court committed plain error by requiring him to produce his 

evidence first. First, we question whether the order of proof 

in this case can fairly be characterized as a decision of the 

court at all. At the start of the hearing, the court stated, “We 

are set for a motion for absolute discharge. [Defense counsel], 

do you have any evidence?” Defense counsel then proceeded 

to offer three exhibits. Nowhere in this exchange did the court 

require or even invite Coomes to produce his evidence first. It 

appears to us that the court’s standard housekeeping question 

to defense counsel simply prompted counsel to offer his evidence at that time.

But even if we construe the court’s statement as a deliberate invitation to Coomes to offer his evidence first, we see no 

indication on this record that the order of proof at the evidentiary hearing caused the court to impermissibly shift the burden 

of proving excludable time from the State to Coomes. To the 

contrary, the court’s order correctly recited the settled principle that the State bears the burden to prove, by the greater 

weight of the evidence, the applicability of one or more of the 

excluded time periods under § 29-1207(4). 14

12 Id. at 523. See, also, Osborn, supra note 9, 241 Neb. at 430, 490 N.W.2d 

at 165 (“the judge may determine generally the order in which parties will 

adduce proof; his or her determination will be reviewed only for abuse of 

discretion”); Small v. State, 165 Neb. 381, 395, 85 N.W.2d 712, 720-21 

(1957) (“[t]he order in which a party shall introduce his proof is to a great 

extent discretionary with the trial court, and the court’s action will not 

be reversed unless an abuse of discretion is shown”); Daniel A. Morris, 

Nebraska Trials § 8:3 at 225 (2020) (“[a]ny departure from the usual order 

of proof is discretionary with the trial court”).

13 See Hyde, supra note 8. See, also, Morris, supra note 12.

14 See, e.g., Jennings, supra note 2.
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STATE v. COOMES

Cite as 309 Neb. 749

No matter the reason for the irregularity in the order of 

proof, we can discern no prejudice to a substantial right of 

Coomes based on the fact that his counsel offered evidence 

first. We therefore find no plain error resulting from the order 

of proof during the evidentiary hearing.

(b) State Can Rely on Evidence 

Adduced by Coomes

Coomes’ second assignment of error argues that because 

the State failed to offer any evidence at the absolute discharge 

hearing, it necessarily failed to meet its burden of proof and it 

was plain error for the district court to conclude otherwise. We 

rejected a similar argument in State v. Hernandez.

 15

In that case, the defendant moved for absolute discharge, 

alleging his statutory speedy trial rights had been violated. 16

The defendant’s motion contained statements of fact regarding 

his incarceration in Iowa during a certain period of time. At 

the hearing on the defendant’s motion for absolute discharge, 

the State offered no evidence. When the district court overruled the motion for discharge, it relied in part on admissions 

contained in the defendant’s motion. On appeal, the defendant 

argued that because the State presented no evidence at the 

hearing on his motion for discharge, the State necessarily failed 

to meet its burden of proof. We disagreed.

We explained that the statements of fact in the defendant’s 

motion for absolute discharge were properly construed as 

judicial admissions and therefore served as a substitute for 

evidence. As a matter of first impression, we saw no reason 

why the principles governing judicial admissions of a party 

should not also apply to admissions made in a motion for 

absolute discharge. We therefore concluded not only that the 

State was entitled to take advantage of the defendant’s judicial admissions as evidence pertaining to the motion, but also 

that “the State’s failure to produce its own evidence did not 

15 Hernandez, supra note 3.

16 Id.
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necessarily mean that the district court erred in overruling [the 

defendant’s] motion.” 17

Our reasoning in Hernandez is consistent with our jurisprudence generally, which allows parties to rely on evidence 

offered by the other side. 18 As one legal commentator explains:

In determining the weight and sufficiency of the evidence, evidence offered by either side that is helpful to 

the other side may be used by the other side. In other 

words, any deficiencies in one party’s case may be cured 

by proof presented by the opposing party. This is so 

because the jury can consider all the evidence, regardless 

of which side introduced it.

. . . .

[P]roof of any element of an offense may come from 

either party. Consequently, where the defense presents 

evidence, this evidence may also directly or inferentially 

support a reasonable finding of guilt or may assist in 

proving the state’s case, and the accused cannot complain 

that the evidence adduced by the prosecution is insufficient where the accused has supplied the deficiency. 19

17 Id. at 305, 959 N.W.2d at 775.

18 See Miller v. E.M.C. Ins. Cos., 259 Neb. 433, 444, 610 N.W.2d 398, 407-

08 (2000) (“[t]he burden of proof which a party has may be supported 

by evidence produced by the opposing party as well as by his or her 

own evidence”). See, also, State v. Brown, 235 Neb. 10, 453 N.W.2d 

576 (1990) (affirming denial of motion to suppress where only evidence 

presented was offered by defendant).

19 23A C.J.S. Criminal Procedure and Rights of Accused § 1547 at 266-67 

(2016). See, also, Rankin v. State, 953 S.W.2d 740, 741 (Tex. Crim. App. 

1996) (“[p]roof of any element may come from either party; it is not 

required that the proof come solely from the State”); State v. Pittera, 139 

N.H. 257, 260, 651 A.2d 931, 933 (1994) (“[w]e review the entire trial 

record because, even though the defendant is not required to present a 

case, if he chooses to do so, he takes the chance that evidence presented in 

his case may assist in proving the State’s case”); People v. Husar, 22 Ill. 

App. 3d 758, 767, 318 N.E.2d 24, 32 (1974) (“[e]vidence introduced by a 

defendant may be considered by the trier of the facts,” and “it may supply 

deficiencies in the State’s proof ”).
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Coomes offered three exhibits at the hearing on his motion 

for absolute discharge: a certified copy of the court file in his 

criminal case, transcripts of the various hearings before the 

district court after the mistrial was declared, and an affidavit 

from Coomes’ counsel reciting the relevant procedural history 

and showing counsel’s speedy trial calculations. After the court 

received these exhibits, the State did not offer any additional 

evidence, and the matter was taken under advisement.

[8] While it is somewhat puzzling that the State did not offer 

evidence, or at least join in the offer made by Coomes, we nevertheless hold the State was entitled to rely upon the evidence 

offered by Coomes, and received by the court, in meeting its 

burden of proving excludable time under § 29-1207(4). 20 On 

this record, it was not plain error for the court to rely on evidence offered by the defense when determining whether the 

State met its burden of proof.

2. Speedy Trial Analysis

Considering all available evidence in the record, we proceed 

to address Coomes’ final assignment of error, in which he 

argues the record does not support the trial court’s finding that 

“good cause” under § 29-1207(4)(f ) excludes the time period 

from January 17 to April 7, 2020. First, we review the principles of law governing speedy trial calculations generally.

A criminal defendant’s speedy trial rights are governed by 

§ 29-1207 and Neb. Rev. Stat. § 29-1208 (Reissue 2016). As 

pertinent to this appeal, § 29-1207 provides, in relevant part:

(1) Every 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.

(2) Such six-month period shall commence to run from 

the date the indictment is returned or the information 

filed . . . .

20 See Hernandez, supra note 3.
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(3) If a defendant is to be tried again following a mistrial, an order for a new trial, or an appeal or collateral 

attack, such period shall commence to run from the date 

of the mistrial, order granting a new trial, or the mandate 

on remand.

(4) The following periods shall be excluded in computing the time for trial:

. . . .

(b) The period of delay resulting from a continuance 

granted at the request or with the consent of the defendant 

or his or her counsel. . . . A defendant is deemed to have 

waived his or her right to speedy trial when the period of 

delay resulting from a continuance granted at the request 

of the defendant or his or her counsel extends the trial 

date beyond the statutory six-month period;

. . . .

(f ) Other periods of delay not specifically enumerated 

in this section, but only if the court finds that they are for 

good cause.

[9-11] To calculate the 6-month period under § 29-1207, “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.” 21 The 6-month period within which an accused is to 

be brought to trial refers to a period of 6 calendar months, not 

180 days. 22 Once a mistrial is granted, the speedy trial clock is 

restarted, 23 and the 6-month speedy trial period commences to 

run from the date of the mistrial. 24

[12,13] We have long recognized that the primary burden 

is on the State to bring an accused person to trial within the 

21 State v. Chapman, 307 Neb. 443, 448, 949 N.W.2d 490, 493-94 (2020).

22 See State v. Jones, 208 Neb. 641, 305 N.W.2d 355 (1981).

23 State v. Dockery, 273 Neb. 330, 729 N.W.2d 320 (2007).

24 Id. See § 29-1207(3).
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time provided by law. 25 If a defendant is “not brought to trial 

before the running of the time for trial as provided for in section 29-1207, as extended by excluded periods, he or she shall 

be entitled to his or her absolute discharge from the offense 

charged.” 26 When a motion for absolute discharge is filed, the 

State bears the burden to show, by the greater weight of the 

evidence, that one or more of the excluded time periods under 

§ 29-1207(4) are applicable. 27

In this case, all parties agree the 6-month speedy trial clock 

was restarted on September 12, 2019, the date the mistrial was 

declared. 28 Excluding that day, counting forward 6 months, and 

backing up 1 day, the State was required to retry Coomes on 

or before March 12, 2020, unless the State proved excludable 

time periods.

We agree with the parties that the 87-day period between 

October 22, 2019, and January 17, 2020, was properly excludable as a period of delay resulting from continuances granted 

at the request of Coomes’ counsel. 29 The dispute in this appeal 

centers around the excludability of various periods of delay 

occurring after January 17.

The district court found the entire period between January 

17 and April 7, 2020, was excludable for “good cause” under 

§ 29-1207(4)(f ), due to the appointment of replacement defense 

counsel who “needed time to be brought up to speed” in order 

to provide a proper defense. On appeal, Coomes argues none of 

the time after January 17 should have been excluded.

25 See, Hernandez, supra note 3; State v. Richter, 240 Neb. 223, 481 N.W.2d 

200 (1992); State v. Beck, 212 Neb. 701, 325 N.W.2d 148 (1982); State 

v. Bolton, 210 Neb. 694, 316 N.W.2d 619 (1982), disapproved on other 

grounds, State v. Tamayo, 280 Neb. 836, 791 N.W.2d 152 (2010).

26 § 29-1208.

27 Hernandez, supra note 3.

28 See Dockery, supra note 23.

29 See § 29-1207(4)(b).
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The State disagrees. It asserts the trial court properly 

excluded the period between February 11 and April 7, 2020, 

for good cause under § 29-1207(4)(f ). In addition, the State 

argues that Coomes consented to the period of delay between 

March 10 and May 12, and it asserts that time is also excludable under § 29-1207(4)(b).

In the sections that follow, we consider the parties’ arguments.

(a) Good Cause

[14] “Good cause,” for purposes of § 29-1207(4)(f ), is not 

defined by statute, but in the related context of considering 

“good cause” under the speedy trial provisions of Nebraska’s 

detainer statute, 30 we have said “‘[g]ood cause means a substantial reason; one that affords a legal excuse.’” 31 We have 

also recognized that good cause is “‘something that must be 

substantial, but [is] also a factual question dealt with on a 

case-by-case basis.’” 32 We have found this general definition to 

be fitting when analyzing “good cause” to exclude time under 

§ 29-1207(4)(e), 33 and we now conclude it is also fitting to 

apply when analyzing good cause under § 29-1207(4)(f ).

[15,16] A district 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. 34

Moreover, when a trial court relies on § 29-1207(4)(f ) to 

exclude time from the speedy trial calculation, we have said 

that a general finding of “good cause” will not suffice. 35

Instead, the court must make specific findings as to the 

good cause which resulted in the delay. 36 An appellate court 

30 See Neb. Rev. Stat. § 29-3805 (Reissue 2016).

31 State v. Kolbjornsen, 295 Neb. 231, 237, 888 N.W.2d 153, 157 (2016).

32 Id.

33 State v. Beitel, 296 Neb. 781, 895 N.W.2d 710 (2017).

34 See State v. Baird, 259 Neb. 245, 609 N.W.2d 349 (2000).

35 State v. Kinstler, 207 Neb. 386, 299 N.W.2d 182 (1980).

36 See id.
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will give deference to such factual findings unless they are 

clearly erroneous. 37

With these principles in mind, we consider the district 

court’s factual findings of good cause. We focus first on the 

time period from January 17 to February 11, 2020.

(i) January 17 to February 11, 2020

On January 17, 2020, Coomes’ counsel was removed by a 

sua sponte order of the trial court, and replacement counsel 

was appointed by the court on February 11. In his appellate 

briefing, Coomes questions the trial court’s authority to remove 

his privately retained counsel, but this appeal does not require 

us to address the propriety of the court’s decision in that regard 

and we express no opinion on that issue. Instead, the inquiry 

for purposes of our speedy trial analysis is whether the district 

court’s finding of good cause for the delay resulting from the 

appointment of replacement counsel was clearly erroneous.

The court’s order recited the following factual findings in 

support of its good cause determination:

Due to the arrest of [Coomes’] original attorney, Mr. 

Pope was appointed to represent [Coomes] on January 17, 

2020. Mr. Pope needed time to be brought up to speed on 

[Coomes’] case to provide him with a proper defense. Mr. 

Pope was up to speed on April 7, 2020. Thus, the time 

between January 17, 2020 until April 7, 2020, is excluded 

for good cause pursuant to Section 29-[1207](4)(f ).

The court’s finding that replacement counsel was appointed on 

“January 17, 2020,” is clearly erroneous, as the record plainly 

shows that replacement counsel was not appointed until the 

hearing on February 11. Because the trial court made no other 

specific factual findings that could arguably support a finding of good cause for the delay from January 17 to February 

11, we agree with Coomes that the record does not support 

excluding the period from January 17 to February 11 for good 

37 See State v. Feldhacker, 267 Neb. 145, 672 N.W.2d 627 (2004).
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cause. But as we explain next, we find the record does support 

the court’s good cause finding for the period from February 11 

to April 7.

(ii) February 11 to April 7, 2020

Coomes argues this time period was not excludable under 

the good cause provision of § 29-1207(4)(f ) for two reasons. First, he argues there was no “period[] of delay” for 

purposes of § 29-1207(4)(f ). Second, he argues there was no 

evidence to support the conclusion that replacement counsel 

needed additional time to prepare for trial. We find no merit to 

either argument.

For his “period[] of delay” argument, Coomes relies on State 

v. Covey 38 for the proposition that “[u]nder a plain reading of 

§ 29-1207(4)(f ), before an evaluation for good cause need be 

made, there must first be a ‘period of delay.’” As we explain, 

that case is inapposite.

In Covey, we were considering whether a “‘Motion to 

Quash Death Penalty’” filed by the defendant amounted to a 

“period of delay” for purposes of calculating speedy trial. We 

concluded it did not, reasoning the motion recited that a hearing on its substance should only be taken up “‘in the event of 

Defendant’s conviction for first degree murder.’” 39 There was 

no “period of delay” caused by filing the motion, because “by 

its terms, this motion was not to be decided before trial as to 

guilt nor did it impact the commencement of trial.” 40 The circumstances in Covey were unique in that the defendant’s pretrial motion did not have any bearing at all on the preparation 

for, or commencement of, trial, and by its own terms was not 

to be taken up until after trial.

[17,18] Other cases clarify that, for purposes of the speedy 

trial calculation, there is no meaningful distinction between 

38 State v. Covey, 267 Neb. 210, 215, 673 N.W.2d 208, 212 (2004).

39 Id.

40 Id.
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the phrases “period of time” and “period of delay.” 41 Because a 

period of delay is generally synonymous with a period of time, 

we have said that excludable periods can result from delays in 

the progression of a criminal case “regardless of whether the 

trial date was postponed or remained unchanged.” 42 Based on 

this settled authority, we find no merit to Coomes’ argument 

that there was no “period of delay” between February 11 and 

April 7, 2020.

Similarly, we find no merit to Coomes’ argument that there 

was no evidence to support the finding that replacement counsel needed additional time to prepare for trial, thus there was 

no “good cause” for excluding the period from February 11 to 

April 7, 2020. As a threshold matter, we observe generally that 

under the appropriate circumstances, the period of time following the appointment of replacement counsel can support a good 

cause finding under § 29-1207(4)(f ), assuming the trial court 

makes sufficient specific findings. 43 And in the instant appeal, 

we conclude the district court’s findings were sufficient to support its determination of good cause for the delay occasioned 

by the appointment of Coomes’ replacement counsel.

Immediately after appointing replacement defense counsel 

on February 11, 2020, the court advised Coomes it would 

41 Feldhacker, supra note 37, 267 Neb. at 155, 672 N.W.2d at 635 (explaining 

that “[t]he phrase ‘period of delay’ in § 29-1207(4)(f ) refers to a specified 

period of time in which trial did not commence”).

42 State v. Lovvorn, 303 Neb. 844, 850, 932 N.W.2d 64, 69 (2019).

43 See, e.g., State v. Craig, 15 Neb. App. 836, 739 N.W.2d 206 (2007) 

(finding “good cause” under § 29-1207(4)(f ) to exclude time between 

appointment of public defender and counsel’s first appearance when 

defendant previously represented to court he would retain private counsel 

and failed to do so); State v. Droz, 14 Neb. App. 32, 39, 703 N.W.2d 637, 

643 (2005) (noting “it could be argued that there was ‘good cause’ for 

delay following the appointment of new counsel,” but declining to find 

period of time excludable for good cause because court failed to make 

specific findings to that effect). See, also, Blackwell v. State, 338 Ark. 

671, 1 S.W.3d 399 (1999) (finding that delay resulting from need for 

appointment of new counsel excludable for good cause).
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set the next status hearing for March 10, to give Coomes a 

chance to meet with his new counsel and allow counsel to 

become familiar with Coomes’ files; Coomes responded, “All 

right. Thank you.” At the hearing on March 10, the court asked 

defense counsel whether he had been able to review the file 

and “get caught up,” and counsel replied, “I haven’t, Your 

honor.” Counsel elaborated that he had spoken to Coomes 

for the first time that day and had just filed motions for discovery and for preparation of the transcript from the original 

trial. When asked by the court whether he would be ready for 

a pretrial hearing soon, defense counsel replied, “Once I get 

discovery and have a chance to go through that, which I don’t 

think it would be too much of an issue, I could get things moving towards pretrial.” Based on this information, the court set 

the next status hearing for April 7, with the expectation that a 

pretrial date would be set at that time.

This evidence supports the trial court’s specific factual finding that Coomes’ new defense counsel “needed time to be 

brought up to speed on [Coomes’] case to provide him with 

a proper defense.” On this record, there is no clear error in 

the trial court’s determination that the circumstances provided a substantial reason affording a legal excuse for the 

delay 44 and therefore supported a finding of good cause under 

§ 29-1207(4)(f ) to exclude the period of delay from February 

11 to April 7, 2020. This resulted in 56 days of excluded time.

Because of our conclusion regarding good cause, it is 

unnecessary to address the State’s alternative argument that 

the period from March 10 through April 7, 2020, is also properly excludable under § 29-1207(4)(b) as a period of delay 

resulting from a continuance granted with the consent of 

Coomes’ counsel. However, because the State also argues that 

the period between April 7 and May 12 is excludable under 

§ 29-1207(4)(b), we consider that argument next.

44 See Kolbjornsen, supra note 31.
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(iii) April 7 to May 12, 2020

In its order denying absolute discharge, the district court did 

not consider the excludability of any period after April 7, 2020. 

On appeal, the State argues that the period from April 7 to May 

12 is properly excluded under § 29-1207(4)(b) as a period of 

delay resulting from a continuance granted with the consent of 

Coomes’ counsel. We agree.

As an initial matter, we reject Coomes’ suggestion that we 

cannot consider the excludability of this time period because 

the State did not file a cross-appeal. We have held that “[a] 

cross-appeal must be properly designated, pursuant to [our 

appellate rules], if affirmative relief is to be obtained.” 45 We 

have described “[a]ffirmative relief ” as “a reversal, vacation, 

or modification of a lower court’s judgment, decree, or final 

order.” 46 But here, the State is not seeking a reversal, vacation, 

or modification of the lower court’s order.

[19] It is not unusual for our speedy trial opinions to consider 

excludable periods that differ from those considered by the 

trial court. 47 And in an appeal from the denial of a motion for 

absolute discharge, the State as appellee does not request affirmative relief by arguing that additional periods of delay, which 

were neither considered nor ruled upon by the district court, 

are also properly excludable. The absence of a cross-appeal in 

this case does not preclude us from considering whether the 

record supports additional excludable periods. 48

[20] At the status hearing on April 7, 2020, the State made 

an oral motion to continue the matter for “a month down 

45 State v. Bishop, 263 Neb. 266, 274, 639 N.W.2d 409, 416 (2002).

46 Id.

47 See, e.g., State v. Billingsley, ante p. 616, ___ N.W.2d ___ (2021) (affirming 

denial of absolute discharge on grounds different than considered by trial 

court). Accord Kolbjornsen, supra note 31 (rejecting defendant’s argument 

that appellate court could not consider speedy trial issues under separate 

statute applicable to in-state prisoners because trial court applied only 

§ 29-1207).

48 See Billingsley, supra note 47.
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the road” and Coomes’ counsel responded, “Judge that’s fine 

with me.” The court then set the matter for a status hearing on 

May 12. As such, the period from April 7 to May 12 is a classic example of a “delay resulting from a continuance granted 

at the request or with the consent of the defendant or his or 

her counsel,” 49 and it is properly excluded from the speedy 

trial calculation. We have explained that excludable time for 

a continuance begins the day after the continuance is granted 

and includes the day on which the continuance ends. 50 As such, 

this excludable period began on April 8 and ended on May 12, 

resulting in another 35 excludable days.

(b) Speedy Trial Calculation

Having considered the arguments of the parties regarding 

excludable time, we find this leaves only a calculation of the 

total number of days properly excluded. As explained, the 

speedy trial clock restarted when the mistrial was declared 

on September 12, 2019, so in the absence of excludable 

time, Coomes should have been brought to retrial by March 

12, 2019.

There were 87 excludable days from October 22, 2019, to 

January 11, 2020, and 91 excludable days between February 11 

and May 12, 2020, for a total of 178 excludable days. Adding 

178 days to March 12, 2020, we arrive at September 6, 2020, 

which was a Sunday, so the State had until Monday, September 

7, to bring Coomes to trial.

When Coomes filed his motion for absolute discharge on 

August 10, 2020, the speedy trial deadline had not yet expired. 

Since there was no statutory speedy trial violation, the district 

court properly overruled Coomes’ motion. Moreover, because 

Coomes’ motion for absolute discharge resulted in continuing a timely retrial to a date outside the statutory 6-month 

period, he has permanently waived his statutory speedy trial 

49 See § 29-1207(4)(b).

50 Lovvorn, supra note 42.
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rights under § 29-1207(4)(b) and this court’s holding in State 

v. Mortensen.

 51

V. CONCLUSION

For the foregoing reasons, we conclude that the district court 

did not clearly err in denying Coomes’ motion for absolute discharge. Accordingly, we affirm.

Affirmed.

Miller-Lerman, J., participating on briefs.

Heavican, C.J., not participating.

51 See State v. Mortensen, 287 Neb. 158, 841 N.W.2d 393 (2014).

Freudenberg, J., concurring.

I agree with the analysis and holding of the majority opinion. I write separately to address a period of time that such 

opinion did not find necessary to reach in its statutory speedy 

trial discussion. The majority found that sufficient speedy trial 

time remained without the need to address the period of time 

between the pretrial hearing on June 9 and when Coomes filed 

his motion for absolute discharge on August 10, 2020. It is my 

belief that the period between the pretrial conference and the 

August 17 trial date would not have counted against the State 

in the statutory speedy trial analysis.

The State, Coomes, and his counsel all appeared at the June 

9, 2020, pretrial conference. At that time, the district court discussed possible trial dates with the parties. Both counsel agreed 

the suggested August 17 trial date was acceptable. The district 

court also directly inquired of Coomes, “Does that [date] work 

for you . . . ?” Coomes responded, “Yes it does.” The district 

court then set the trial date, in accordance with the consent of 

the parties, to begin on August 17. Coomes filed his motion to 

discharge on August 10.

Previously, this court has generally addressed as part of a 

statutory speedy trial analysis the period of time between the 

trial scheduling date and the date the trial begins. In State v. 
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Alvarez, 189 Neb. 281, 291-92, 202 N.W.2d 604, 610 (1972), 

we said:

A failure by a defendant to demand a trial within the time 

he is required to be brought to trial as provided by sections 29-1205 to 29-1209, R. S. Supp., 1971, or to object 

at the time trial date is set does not constitute a waiver of 

his [statutory speedy trial] rights . . . .

In State v. Kinstler, 207 Neb. 386, 390-91, 299 N.W.2d 182, 

185-86 (1980), we clarified our position:

In a series of decisions rendered by this court since 

the enactment of the speedy trial laws by the Legislature 

of the State of Nebraska, we have announced that the 

primary burden is upon the State to bring the accused 

person to trial within the time provided by law and that, 

if he is not brought to trial within that time, he is entitled 

to an absolute discharge from the offense alleged, in the 

absence of an express waiver or waiver as provided by 

statute. Moreover, we have held that the failure of the 

accused to object at the time the trial court enters an order 

setting the trial at a date after the 6-month period does not 

constitute a waiver of his statutory right to a speedy trial 

and, further, we have held that, if a portion of the statute 

is to be tolled by reason of one of the exceptions in the 

statute, the State has the burden of proving . . . that such 

exception is applicable.

Section 29-1207 sets forth: “(4) The following periods shall 

be excluded in computing the time for trial: . . . (b) The period 

of delay resulting from a continuance granted at the request or 

with the consent of the defendant or his or her counsel.” Such 

exception is applicable to our analysis here.

While the holdings of Alvarez and Kinstler are instructive, 

both are factually distinguishable from the present matter. In 

Alvarez, the record was silent on whether the defendant or his 

counsel consented to the setting of the trial date. In Kinstler, 

the motion to discharge was filed and granted prior to the setting of a trial date.
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Here, the record clearly shows that both Coomes and his 

counsel were asked by the district court about the identified 

trial date and both agreed to the continuance to that date. This 

was not mere passive acceptance of a trial date, but an agreement on the record by both parties to the delay.

Section 29-1207(4)(b) does not limit the excludable period 

of delay to “motions,” at the request of or with the consent of 

the defendant, for continuance of a trial date previously set. 

It refers more broadly to “a continuance.” I view this “continuance” in light of the prior language of § 29-1207(1) that 

every defendant shall be brought to trial within 6 months and 

that “such time shall be computed as provided in this section.” When reading a statute, what it does not say is often as 

important as what it does say, and the whole and every part 

of the statute must be considered in fixing the meaning of 

any of its parts. See Robinson v. Houston, 298 Neb. 746, 905 

N.W.2d 636 (2018). Viewing § 29-1207 as a whole, I believe 

§ 29-1207(4)(b) refers to any delay or postponement of the 

6-month statutory period that has been requested by or consented to by the defendant or defense counsel.

When a trial court is able to ascertain that a proposed trial 

date will fall outside the statutory period, I would continue to 

encourage trial courts, in accordance with State v. Johnson, 

201 Neb. 322, 268 N.W.2d 85 (1978), overruled on other 

grounds, State v. Petty, 269 Neb. 205, 691 N.W.2d 101 (2005), 

to advise the defendant thereof and ascertain on the record 

whether the defendant waives the right to a speedy trial and 

consents to the trial date set. But such an express waiver of 

the right to a speedy trial is not a condition to exclusion from 

computation, under § 29-1207(4)(b), of the period of time 

between the defendant’s consent to a trial date and the date 

consented to.

Even if we did not view a stated acquiescence to the setting 

of a trial date as a continuance with the consent of the defendant under the plain language of § 29-1207(4)(b), it is inappropriate for a defendant to gain advantage from a violation 
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when the defendant was a party to that violation. See State v. 

Brown, 307 Md. 651, 516 A.2d 965 (1986). A defendant ordinarily cannot invite an error and then complain of it. See State 

v. Williams, 212 Neb. 860, 326 N.W.2d 678 (1982).

As such, the record clearly establishes by a greater weight 

of the evidence that the period between June 9 and August 

17, 2020, was a period of delay granted with the consent 

of Coomes and his counsel which would further toll the 

statutory speedy trial clock. To find otherwise would allow 

Coomes to benefit from invited error. I believe we should have 

addressed such period of time, and therefore, I concur with the 

majority opinion.