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Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

STATE v. BILLINGSLEY

Cite as 309 Neb. 616

State of Nebraska, appellee, v. 

William Billingsley III, 

appellant.

___ N.W.2d ___

Filed June 25, 2021. No. S-20-725.

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. Speedy Trial. The statutory right to a speedy trial is set forth in Neb. 

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

3. ____. 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.

4. 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).

5. Speedy Trial: Motions for Continuance: Prosecuting Attorneys: 

Evidence. Neb. Rev. Stat. § 29-1207(4)(c)(i) (Reissue 2016) provides 

that a continuance will extend the time of trial under the speedy trial 

provision if it is a continuance granted at the request of the prosecuting 

attorney because of the unavailability of evidence material to the State’s 

case when the prosecutor has exercised due diligence to obtain such 

evidence and when there are reasonable grounds to believe that such 

evidence would be available at a later date.

6. Speedy Trial: Motions for Continuance: Prosecuting Attorneys. Neb. 

Rev. Stat. § 29-1207(4)(c)(ii) (Reissue 2016) provides that the period of 

delay resulting from a continuance granted at the request of the State 

Nebraska Supreme Court Online Library

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

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STATE v. BILLINGSLEY

Cite as 309 Neb. 616

is excludable if it is granted to allow additional time to prepare a case 

and additional time is justified because of the exceptional circumstances 

of the case.

7. 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.

Appeal from the District Court for Morrill County: Andrea 

D. Miller, Judge. Affirmed.

Bell Island, of Island Law Office, P.C., L.L.O., for appellant.

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

for appellee.

Miller-Lerman, Cassel, Stacy, Funke, Papik, and 

Freudenberg, JJ.

Funke, J.

This is an appeal from an order of the district court for 

Morrill County overruling the motion of William Billingsley 

III for absolute discharge on statutory speedy trial grounds. We 

affirm the judgment of the district court.

BACKGROUND

On September 3, 2019, the State of Nebraska filed an information charging Billingsley with one count of assault in the 

first degree, one count of assault in the third degree, and one 

count of disturbing the peace. Billingsley had already filed a 

plea in abatement on August 28. On December 5, the court 

denied the plea in abatement and set the matter for arraignment 

on January 6, 2020.

The court conducted a pretrial conference on April 6, 2020, 

which was held via telephone due to the COVID-19 pandemic. 

The court recorded in a journal entry that it was “unable to 

safely assemble a jury panel and pick a jury at this time and 

[did] not know when a panel can be safely assembled.” The 

court continued the scheduling of trial and set the matter for 
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STATE v. BILLINGSLEY

Cite as 309 Neb. 616

a scheduling conference. On May 4, the court again conducted 

a telephonic conference, continued the scheduling of trial due 

to the COVID-19 pandemic, and set the matter for another 

scheduling conference. Billingsley did not object to these 

continuances.

On June 1, 2020, the parties appeared and the court scheduled a trial date of June 30. The court’s journal entry stated that 

“[c]ounsel are to call the [c]ourt the week [of] June 15, 2020 

to discuss the logistics of conducting the trial in light of the 

COVID-19 situation.”

On June 25, 2020, the prosecution filed a motion to continue 

trial, with an affidavit supporting the motion. The prosecutor 

averred in his affidavit that he was attempting to secure the 

testimony of three doctors who “treated the victim in this case 

and are material witnesses as to the extent and potential permanency of his injuries.” Two of the doctors advised through 

counsel that they would not appear absent a court order. On 

June 22, the prosecutor obtained the necessary certificate to 

obtain court orders for all three doctors. A hearing was set 

on the matter in Colorado on June 26. However, on June 25, 

the prosecutor received notice that he had tested positive for 

COVID-19. Because he was required to isolate for 14 days, 

the prosecutor could not attend the June 26 hearing or the June 

30 trial.

The prosecutor requested a continuance, stating that 

“[p]ursuant to Neb. Rev. Stat. § 29-1206, there is a good cause 

to delay the trial in this matter . . . .” The prosecutor requested 

additional time for trial due to his illness and need to secure 

the attendance of material witnesses. The court granted the 

State’s motion over Billingsley’s objection. The court stated in 

its order that “any delay caused by the continuance would be 

taxed against the State for purposes of speedy trial.”

On July 15, 2021, the court set the case for jury selection for August 11, with trial to commence on August 24. On 

August 11, Billingsley filed his motion for absolute discharge 

on speedy trial grounds. The court denied Billingsley’s motion. 
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STATE v. BILLINGSLEY

Cite as 309 Neb. 616

In its speedy trial calculation, the court identified the date 

the information was filed, which was September 3, 2019. By 

excluding the day the information was filed, counting forward 6 calendar months, and backing up one day, the court 

calculated March 3, 2020, to be the State’s deadline to bring 

Billingsley to trial, if no additional time periods were excluded. 

The court then calculated the time periods to be excluded. The 

court found that due to Billingsley’s filing of a plea in abatement, under Neb. Rev. Stat. § 29-1207(4)(a) (Reissue 2016), 

a period of 93 days, from September 4 through December 5, 

2019, should be excluded. Next, the court found that a second period of 84 days, “from April 3 [sic] [through] June 26, 

2020,” should be excluded. The court stated that there was sufficient good cause to exclude this period under § 29-1207(4)(f), 

because the scheduling of trial was delayed due to COVID-19 

restrictions that were in place.

Based on the two excludable time periods, the court added 

177 days to March 3, 2020. The court concluded that the 

State had to bring Billingsley to trial by August 27 and that 

Billingsley prematurely filed his motion for absolute discharge 

on August 11.

Billingsley appeals. We moved the case to our docket on our 

own motion.

ASSIGNMENT OF ERROR

Billingsley assigns that the district court erred in denying his 

motion for absolute discharge.

STANDARD OF REVIEW

[1] 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. 1

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

307 Neb. 443, 949 N.W.2d 490 (2020).
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STATE v. BILLINGSLEY

Cite as 309 Neb. 616

ANALYSIS

[2] Billingsley contends that he was entitled to discharge 

because the State violated his statutory right to a speedy trial. 

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

Neb. Rev. Stat. § 29-1208 (Reissue 2016). 2 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. Section 29-1207(4)(a) excludes 

all time between the time of the filing of a defendant’s pretrial motions and their final disposition, including “pleas in 

abatement.” Section 29-1207(4)(c) excludes certain periods 

of delay “resulting from a continuance granted at the request of 

the prosecuting attorney.” Section 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.”

[3,4] 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.” 3 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). 4 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 

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

3 Chapman, supra note 1, 307 Neb. at 448, 949 N.W.2d at 493-94.

4 Jennings, supra note 1. See State v. Williams, 277 Neb. 133, 761 N.W.2d 

514 (2009).
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Cite as 309 Neb. 616

by excluded periods, he or she shall be entitled to his or her 

absolute discharge from the offense charged.” 5

In this case, because the information was filed on September 

3, 2019, we agree that the State had until March 3, 2020, to 

bring Billingsley to trial if there were no excludable days. In 

evaluating Billingsley’s motion for absolute discharge, there 

are three relevant periods of delay we must consider.

First, we must consider the days to be excluded as a result 

of Billingsley’s plea in abatement. Under § 29-1207(4)(a), the 

excludable period commences on the day immediately after 

the filing of a defendant’s motion, and final disposition occurs 

on the date the motion is granted or denied. 6 Here, Billingsley 

and the State agree with the district court’s calculation that, as 

a result of Billingsley’s plea in abatement, there is an excludable period of 93 days, for the days between September 4 and 

December 5, 2019.

Second, as his sole assignment of error, Billingsley argues 

that the court erred in excluding the days from June 1 to 

26, 2020, for good cause under § 29-1207(4)(f) due to the 

COVID-19 pandemic. As detailed above, the court held a conference on June 1, at which time the court set trial for June 30. 

The court recorded in its journal entries that “[t]he scheduling of a jury trial under the COVID-19 pandemic restrictions 

required planning, preparations, alternate locations and coordi

nation to obtain PPE sufficient to keep jurors, litigants and 

court staff safe.” The court noted that it had required the parties 

to participate in a telephonic conference the week of June 15 to 

discuss the logistics of conducting a jury trial during the pandemic. Therefore, the court found good cause to exclude the 

days from the April 6 pretrial conference to the State’s motion 

to continue trial on June 26. Billingsley concedes that a period 

of 56 days, from April 6 to June 1, should be excluded and that 

overall, a total of 149 days should be excluded.

5 § 29-1208.

6 Williams, supra note 4.
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Cite as 309 Neb. 616

Billingsley contends, however, that the State failed to meet 

its burden that the period from June 1 to 26, 2020, is an excludable period because the State did not submit any evidence to 

support the court’s good cause determination. Relying on State 

v. Baird 7 and State v. Rhoads,

 8 Billingsley argues that there is 

no evidence to substantiate the findings that the COVID-19 

restrictions delayed the scheduling of trial, other than the 

statements of the trial court, which cannot be considered as 

evidence. Billingsley argues that the State had to commence 

his trial by July 30 and that his August 11 motion for absolute 

discharge should have been granted.

The State accepts Billingsley’s concession that 149 days 

should be excluded. The State disagrees with Billingsley’s 

argument that there is no evidence to support the court’s 

finding that good cause existed to exclude June 1 to 26, 

2020. The State argues, however, that it is not necessary to 

address Billingsley’s argument that June 1 to 26 should not be 

excluded, because the record shows that based on the State’s 

continuance, a third period of 46 days should be excluded, 

from June 26 to August 11. For reasons we explain, we find 

the State’s position to have merit, and we find the excludable period from June 26 to August 11 to be dispositive of 

the speedy trial issue. Therefore, we do not address whether 

there is any merit to Billingsley’s argument that June 1 to 26 

should not be excluded. Rather, we will assume in our analysis that June 1 to 26 should not be excluded and demonstrate 

that as a result of the excludable period between June 26 and 

August 11 the court did not err in denying Billingsley’s motion 

for discharge.

[5,6] Section 29-1207(4)(c)(i) provides that a continuance 

will extend the time of trial under the speedy trial provision 

if it is a continuance granted at the request of the prosecuting 

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

8 State v. Rhoads, 11 Neb. App. 731, 660 N.W.2d l81 (2003), overruled on 

other grounds, State v. Petty, 269 Neb. 205, 691 N.W.2d 101 (2005).
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attorney because of the unavailability of evidence material to 

the State’s case when the prosecutor has exercised due diligence to obtain such evidence and when there are reasonable 

grounds to believe that such evidence would be available at a 

later date. 9 Section 29-1207(4)(c)(ii) provides that the period 

of delay resulting from a continuance granted at the request 

of the State is excludable if it is granted to allow additional 

time to prepare a case and additional time is justified because 

of the exceptional circumstances of the case. 10 The calculation 

of excludable time for a continuance begins the day after the 

continuance is granted and includes the day on which the continuance ends. 11 A motion for continuance is addressed to the 

discretion of the court, and in the absence of a showing of an 

abuse of discretion, a ruling on a motion for continuance will 

not be disturbed on appeal. 12

The State argues that the third excludable period was established when the court granted the prosecutor’s motion to continue trial on June 26, 2020. The State argues the prosecutor’s 

affidavit in support of the motion for continuance satisfied the 

requirements of §§ 29-1207(4)(c)(i) and (ii). More specifically, 

the State argues under § 29-1207(4)(c)(i) that the prosecutor’s 

affidavit demonstrated the need for a continuance due to the 

unavailability of material witnesses, the prosecutor’s exercise 

of due diligence in obtaining these witnesses, and the reasonable grounds to believe that such witness testimony would be 

available at a later date. We agree that the prosecutor’s affidavit satisfies the requirements of § 29-1207(4)(c)(i) and find 

no evidence to the contrary. The prosecutor explained that the 

testimony sought went to the nature of the victim’s injuries, 

9 State v. Roundtree, 11 Neb. App. 628, 658 N.W.2d 308 (2003). See, State 

v. Turner, 252 Neb. 620, 564 N.W.2d 231 (1997); State v. Oldfield, 236 

Neb. 433, 461 N.W.2d 554 (1990).

10 See State v. Robertson, 294 Neb. 29, 881 N.W.2d 864 (2016).

11 Lovvorn, supra note 2.

12 Turner, supra note 9.
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that legal proceedings had been scheduled to obtain the necessary medical testimony, and that this process would have 

been timely completed but for the prosecutor’s positive test 

for COVID-19. Furthermore, we conclude that the prosecutor’s affidavit satisfies the requirements of § 29-1207(4)(c)(ii) 

to allow the prosecuting attorney additional time to prepare 

the State’s case because of exceptional circumstances. The 

circumstances addressed in the prosecution’s motion showed 

sufficient need for more time, given that he received his diagnosis only 5 days before trial and was in the position of finding 

substitute counsel for trial, as well as for the out-of-state witness matters. The court acted within its discretion in granting 

the State’s request for continuance.

[7] Because we conclude that an additional 46 days should 

be excluded under § 29-1207(4)(c), we conclude that the State 

carried its burden of proving that there are 195 excludable days. 

The State had until September 14, 2020, to bring Billingsley to 

trial. Billingsley prematurely filed his motion for discharge on 

August 11. We conclude that the district court did not err in 

denying Billingsley’s motion for discharge. A correct result 

will not be set aside merely because the lower court applied the 

wrong reasoning in reaching that result. 13 Billingsley’s appeal 

is without merit.

CONCLUSION

We affirm the judgment of the district court denying 

Billingsley’s motion for absolute discharge.

Affirmed.

Heavican, C.J., not participating.

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