- 231 -

Nebraska Supreme Court Advance S

295 Nebraska Report

STATE v. KOLBJORNSEN

Cite as 295 Neb. 231

State of Nebraska, appellee, v.

Frantz G. Kolbjornsen, appe

___ N.W.2d ___

Filed December 2, 2016. No. S-16-148.

1. Judgments: Speedy Trial: Appeal and Error. Ordinarily, 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: Statutes: Appeal and Error. To the extent an appeal calls 

for statutory interpretation or presents questions of law, an appellate 

court must reach an independent conclusion irrespective of the determination made by the court below.

3. Speedy Trial: Prisoners. The statutory procedure under Neb. Rev. Stat. 

§ 29-3805 (Reissue 2016), rather than the procedure under Neb. Rev. 

Stat. § 29-1207 (Reissue 2016), applies to instate prisoners.

4. Judgments: Appeal and Error. A correct result will not be set aside 

merely because the lower court applied the wrong reasoning in reaching 

that result.

5. Good Cause: Words and Phrases. Good cause means a substantial 

reason; one that affords a legal excuse.

6. ____: ____. Good cause is something that must be substantial, but also 

a factual question dealt with on a case-by-case basis.

Appeal from the District Court for Hall County: William T.

Wright, Judge. Affirmed

Gerard A. Piccolo, Hall County Public Defender, for 

appellant.

Douglas J. Peterson, Attorney General, and Kimberly A. 

Klein for appellee.

Nebraska Supreme Court Online Library

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

12/02/2016 09:10 AM CST
- 232 -

Nebraska Supreme Court Advance S

295 Nebraska Report

STATE v. KOLBJORNSEN

Cite as 295 Neb. 231

Heavican, C.J., Wright, Miller-Lerman, Casse

Kelch, and Funk

Cassel, J

INTRODUCTION

Frantz G. Kolbjornsen appeals from a criminal case order 

denying relief under two different “speedy trial” statutes.1

Because Kolbjornsen was a Nebraska prisoner at all relevant 

times, only one statute applied—the one governing intrastate 

detainers.2 We conclude that the district court’s determination 

that courtroom unavailability established good cause to extend 

the time in which to try Kolbjornsen was not clearly erroneous, 

and we affirm.

BACKGROUND

In September 2014, Kolbjornsen began serving sentences 

imposed for criminal offenses committed in Hamilton County, 

Nebraska. Approximately 2 months later, the State filed a 

complaint in the county court for Hall County, alleging that 

Kolbjornsen committed assault on a peace officer in the third 

degree. On December 16, the State received a letter from the 

Department of Correctional Services stating that Kolbjornsen 

was requesting a quick and speedy disposition of two untried 

charges, one of which was the charge for assault on a peace 

officer in the third degree. The State later amended the charge 

to assault by a confined person, and Kolbjornsen was bound 

over to the district court after a preliminary hearing. On March 

3, 2015, the State filed an information charging Kolbjornsen 

with assault by a confined person.

In May 2015, the State filed a motion requesting the district 

court to advance Kolbjornsen’s trial “for speedy trial requirements” and requesting a hearing date as soon as possible. 

During a hearing on the motion, the court stated that it would 

1 Neb. Rev. Stat. §§ 29-1207 and 29-3805 (Reissue 2016).

2 § 29-3805.
- 233 -

Nebraska Supreme Court Advance S

295 Nebraska Report

STATE v. KOLBJORNSEN

Cite as 295 Neb. 231

advance the trial from August until May 27 or 28. On May 22, 

Kolbjornsen moved for continuance, stating that the defense 

was not ready to proceed to trial. The district court thereafter 

granted the motion and continued the matter until August 26.

On August 12, 2015, the district court held a final plea 

hearing. During the hearing, Kolbjornsen’s counsel stated that 

Kolbjornsen did not “have a problem” if his trial was not held 

in August. The court explained that various jury courtrooms 

were going to be unavailable during renovations to the building, including the courtroom in which Kolbjornsen’s trial was 

to be held. After the bailiff said “no jury trials” for October 

and November, Kolbjornsen’s counsel asked, “Could we shoot 

for October . . . and see if something breaks[?]” The court 

responded, “Well, basically, what we have been told is nothing 

is available for October.” The court continued the trial until 

December 16.

On December 7, 2015, Kolbjornsen filed two motions. One 

motion requested absolute discharge under § 29-1207. The 

other motion sought to dismiss the case for lack of jurisdiction 

under § 29-3805.

During a hearing on the motions before Judge William T. 

Wright, the district court received exhibits and heard testimony of witnesses. Evidence established that the district court 

for Hall County had two district courtrooms large enough 

to accommodate jury trials and that those courtrooms were 

shared by three district judges. In 2015, Hall County began 

repairs within the courthouse and repairs to the courtrooms 

were scheduled to begin in October. The courtrooms were 

unavailable while being repaired. Since October, only one jury 

courtroom was available for all district court cases. Each of the 

three district judges was assigned specific dates to conduct jury 

trials during October through December. The evidence showed 

that Judge Wright conducted a criminal jury trial for a different 

individual on August 26 and 27. Judge Wright’s bailiff stated 

in an affidavit that the judge was scheduled to preside over 26 

criminal jury trials for June through August in Hall County 
- 234 -

Nebraska Supreme Court Advance S

295 Nebraska Report

STATE v. KOLBJORNSEN

Cite as 295 Neb. 231

and 27 such trials for September through December. The 

bailiff stated that Judge Wright also was presiding over additional cases in Buffalo County during those times, in addition 

to civil cases in both Hall County and Buffalo County. The 

bailiff stated that “all hearings and trials were calendared and 

docketed at the earliest . . . date available to the court for such 

purpose” and that “there weren’t any earlier available dates to 

set this case for hearings or trial.”

The district court denied Kolbjornsen’s motions. The court 

found that renovations caused one of the two district court 

courtrooms to be unusable for jury trials for substantial periods. The order stated that repairs to courtrooms in which jury 

trials could be held were scheduled to begin in October 2015, 

that the repairs had not been completed at the time of the 

order, and that the courtrooms were not available for use while 

being repaired. The order further stated that from October 25 

to the end of 2015, only one jury courtroom was available for 

all district court cases due to repair work. The court found that 

all three of the district judges were using one jury courtroom 

during the months of October, November, and December, and 

that each district judge was assigned specific dates to conduct jury trials within that timeframe. As to Kolbjornsen’s 

motion under § 29-1207, the court determined that the period 

from August 26 to December 16 should be excluded under 

§ 29-1207(4)(b) and (f). With regard to Kolbjornsen’s motion 

under § 29-3805, the court found that the reasons it gave on 

August 12 to continue the matter to December 16 established 

“good cause.” The court found that for good cause, the period 

of time between May 22 and August 12 and between August 

12 and December 16 should be excluded. The court concluded 

that neither time limit required dismissal at the time that 

Kolbjornsen filed his motions.

Kolbjornsen filed a timely appeal, which we moved to 

our docket.3

3 See Neb. Rev. Stat. § 24-1106(3) (Reissue 2016).
- 235 -

Nebraska Supreme Court Advance S

295 Nebraska Report

STATE v. KOLBJORNSEN

Cite as 295 Neb. 231

ASSIGNMENT OF ERROR

Kolbjornsen assigns, consolidated, that the district court 

erred in overruling his motions pursuant to §§ 29-1207 

and 29-3805.

STANDARD OF REVIEW

[1] Ordinarily, 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.4

[2] To the extent an appeal calls for statutory interpretation 

or presents questions of law, an appellate court must reach 

an independent conclusion irrespective of the determination 

made by the court below.5

ANALYSIS

§ 29-1207 Does Not App

[3] Kolbjornsen sought relief under the speedy trial provisions of two different legislative acts, but only one applies to 

his case. Both §§ 29-1207 and 29-3805 address speedy trial 

rights. But we have previously held that the latter statutory 

procedure, rather than the former, applies to instate prisoners.6

Because Kolbjornsen was a “committed offender”7 in the custody of the Department of Correctional Services at the time 

that he filed his motions, his statutory speedy trial rights were 

governed by Neb. Rev. Stat. §§ 29-3801 to 29-3809 (Reissue 

2016). The procedure under § 29-1207 does not apply.

[4] Kolbjornsen suggests that because the State “never 

asserted [the statute’s] inapplicability” and the district court 

4 State v. Tucker, 259 Neb. 225, 609 N.W.2d 306 (2000).

5 Id.

6 See, State v. Tucker, supra note 4; State v. Ebert, 235 Neb. 330, 455 

N.W.2d 165 (1990); State v. Soule, 221 Neb. 619, 379 N.W.2d 762 (1986). 

See, also, State v. Caldwell, 10 Neb. App. 803, 639 N.W.2d 663 (2002).

7 See Neb. Rev. Stat. § 83-170(3) (Supp. 2015).
- 236 -

Nebraska Supreme Court Advance S

295 Nebraska Report

STATE v. KOLBJORNSEN

Cite as 295 Neb. 231

“did not decide the issue,” we “cannot review a decision not 

made by the lower court.”8 He relies on our oft-repeated statement that an appellate court will not consider an issue on 

appeal that was not presented to or passed upon by the trial 

court.9 But the district court did consider the applicability of 

§ 29-1207. The question cannot be divided in the artificial 

way that Kolbjornsen urges. When the court denied any relief 

purportedly based on § 29-1207, it came to the right result 

for the wrong reason—albeit without any help from the State 

below. A correct result will not be set aside merely because 

the lower court applied the wrong reasoning in reaching that 

result.10 Kolbjornsen’s assignment of error regarding § 29-1207 

lacks merit.

Intrastate Deta

General Time Li

The intrastate detainer statute generally provides a 180-day 

time limit to commence a trial. Section 29-3805 requires that 

an untried indictment, information, or complaint be brought 

to trial “[w]ithin one hundred eighty days after the prosecutor receives a certificate from the director pursuant to section 

29-3803 or 29-3804 or within such additional time as the court 

for good cause shown in open court may grant . . . .”

The consequence of not bringing a charge to trial within that 

time period is dismissal with prejudice of the untried indictment, information, or complaint.11 Here, the 180-day period 

began running on December 16, 2014. Without any extensions, 

Kolbjornsen needed to be tried by June 14, 2015.

But, as § 29-3805 expressly states, the 180-day period may 

be extended “for good cause shown in open court.” And the 

State relies on an extension based on this language.

8 Reply brief for appellant at 1.

9 See, e.g., State v. Huston, 285 Neb. 11, 824 N.W.2d 724 (2013).

10 State v. Filholm, 287 Neb. 763, 848 N.W.2d 571 (2014).

11 § 29-3805.
- 237 -

Nebraska Supreme Court Advance S

295 Nebraska Report

STATE v. KOLBJORNSEN

Cite as 295 Neb. 231

Definition of “Good Cau

[5,6] We have not defined “good cause” for purposes of 

§ 29-3805, but the Nebraska Court of Appeals has. “Good 

cause means a substantial reason; one that affords a legal 

excuse.”12 It is “something that must be substantial, but also a 

factual question dealt with on a case-by-case basis.”13

We see no reason to depart from this definition, although 

it is concededly very general. And in applying the definition, 

each case must be determined based upon its particular facts 

and circumstances.

The Nebraska appellate courts have applied the “good 

cause” extension of § 29-3805 to continuances obtained under 

a variety of circumstances. We have held that a continuance 

granted at an instate prisoner’s request in the county court 

where a complaint is pending against the prisoner extends the 

time within which such a prisoner must be brought to trial 

under § 29-3805.14 And the Court of Appeals has determined 

that a continuance granted at a prosecutor’s request but with 

the implicit consent of the prisoner’s attorney extended the 

time limit.15

Application

Statutory Exten

There is no dispute that Kolbjornsen’s request for a continuance extended the time in which to try him. On May 22, 

2015, Kolbjornsen moved for continuance, and the court continued the matter until August 26. Kolbjornsen agrees that 96 

days should be added to the 180-day period. This extended 

the deadline to September 18. Thus, Kolbjornsen’s argument 

depends upon the events of the August plea hearing.

12 State v. Rouse, 13 Neb. App. 90, 94, 688 N.W.2d 889, 892 (2004).

13 State v. Caldwell, supra note 6, 10 Neb. App. at 808, 639 N.W.2d at 667.

14 See State v. Soule, supra note 6.

15 See State v. Rouse, supra note 12.
- 238 -

Nebraska Supreme Court Advance S

295 Nebraska Report

STATE v. KOLBJORNSEN

Cite as 295 Neb. 231

Kolbjornsen’s argument that he had no notice that 

“[§] 29-3805 matters”16 were being discussed at the August 12, 

2015, hearing is perhaps somewhat disingenuous. Although 

the hearing was a final plea hearing, Kolbjornsen’s counsel 

stated at the outset:

Well, Your Honor, there is no plea agreement. I have 

discussed with . . . Kolbjornsen the Court’s docket, 

which I spoke to myself just a few minutes ago, Your 

Honor, and I think you are well aware of your docket. . 

. . Kolbjornsen doesn’t have a problem if we don’t try 

it this month, Your Honor, but I’m eagerly awaiting 

some sort of idea when it would be tried, Your Honor. 

And that would be the point. I mean he doesn’t want to 

wait too long, but he doesn’t mind continuing it from 

this month.

The court responded, “Well, the problem is essentially one 

of facilities, as well as other matters demanding the Court’s 

time for trial, particularly jury trial.” The court proceeded to 

further explain the upcoming unavailability of courtrooms. 

After explaining that the only option for a jury trial was in 

December, the court stated that “Kolbjornsen is free, if he 

chooses, to seek some kind of motion for dismissal on the 

basis of speedy trial, but quite frankly under the circumstances, 

I think the Court and the State have a legitimate excuse.” 

Kolbjornsen’s counsel declined to waive a speedy trial and 

stated, “I agree with you, if I want to, I’ll file a motion and 

I guess the Nebraska Supreme Court can take it up then.” 

Clearly, Kolbjornsen’s speedy trial rights were a substantial 

focus of the August 12 hearing.

And in due course, Kolbjornsen filed his motions (one 

based on § 29-1207 and the other based on § 29-3805). His 

motions relied solely on statutory grounds and did not assert 

any constitutional issue. As we have recited, the district court 

conducted an evidentiary hearing.

16 Brief for appellant at 12.
- 239 -

Nebraska Supreme Court Advance S

295 Nebraska Report

STATE v. KOLBJORNSEN

Cite as 295 Neb. 231

The evidence at this hearing established that there was no 

time or place to hold a jury trial for Kolbjornsen in August 

2015. Kolbjornsen argues that the State failed to prove a 

courtroom was unavailable on and around August 26. But 

the evidence shows that the judge conducted a criminal jury 

trial on August 26 and 27 for a different defendant, against 

whom the State had filed an information 1 month before it 

filed the information against Kolbjornsen. Thus, the judge 

handling Kolbjornsen’s case and a jury-capable courtroom 

were unavailable on those dates. The judge’s bailiff stated 

that on August 12, she advised the court that another case was 

set for a jury trial for the August jury term, that “there was 

no other . . . court space available to complete a jury trial on 

that date[,] and that the next available jury trial date would be 

December 16, 2015.” The State established courtroom unavailability around August 26.

The district court’s determination that courtroom unavailability constituted good cause to continue the trial was not 

clearly erroneous. According to the evidence, only one jury 

courtroom was available for all district court cases since 

October 2015 and the three district judges were assigned 

specific dates to conduct jury trials during October through 

December. We agree with the district court that under the 

circumstances, good cause existed to continue the trial from 

August 26 to December 16, thereby extending the time to try 

Kolbjornsen for an additional 112 days.

Nonetheless, we caution trial courts to tread carefully in 

granting continuances based on courtroom unavailability. The 

counties play an important role in providing “suitable . . . 

accommodation.”17 Here, the State produced enough evidence 

to satisfy its initial burden of production. But evidence of 

other alternatives might easily have tipped the balance against 

a continuance.

17 See Neb. Rev. Stat. § 23-120(1) (Reissue 2012).
- 240 -

Nebraska Supreme Court Advance S

295 Nebraska Report

STATE v. KOLBJORNSEN

Cite as 295 Neb. 231

Because good cause was shown to extend the June 14, 2015, 

trial date by a total of 208 days, the State had until Friday, 

January 8, 2016, to bring Kolbjornsen to trial. Accordingly, 

the time to try Kolbjornsen had not expired at the time of 

his December 7, 2015, motion, and the district court properly 

overruled Kolbjornsen’s motion.

CONCLUSION

We conclude that the speedy trial provisions of § 29-1207 

had no application to Kolbjornsen, because he was a Nebraska 

prisoner. Rather, the time was governed by § 29-3805. Under 

the circumstances, the district court’s determination that courtroom unavailability established good cause to extend the 

time in which to try Kolbjornsen was not clearly erroneous. 

Because the time to try Kolbjornsen had not expired when he 

filed his motion to dismiss the case, the district court correctly 

overruled the motion.

Affirmed