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296 Nebraska Reports

STATE v. BEITEL

Cite as 296 Neb. 781

State of Nebraska, appellee, v. 

Roger Beitel, appellant.

___ N.W.2d ___

Filed June 2, 2017. No. S-16-098.

1. Judgments: Speedy Trial: Appeal and Error. As a general rule, 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. Statutes: Appeal and Error. Statutory interpretation presents a question of law, for which an appellate court has an obligation to reach an 

independent conclusion irrespective of the determination made by the 

court below.

3. ____: ____. Statutory language is to be given its plain and ordinary 

meaning, and an appellate court will not resort to interpretation to 

ascertain the meaning of statutory words which are plain, direct, and 

unambiguous.

4. Statutes. It is not within the province of a court to read a meaning into 

a statute that is not warranted by the language; neither is it within the 

province of a court to read anything plain, direct, or unambiguous out of 

a statute.

5. Statutes: Legislature: Intent. In reading a statute, a court must determine and give effect to the purpose and intent of the Legislature as 

ascertained from the entire language of the statute considered in its 

plain, ordinary, and popular sense.

6. Speedy Trial: Joinder: Statutes: Legislature: Intent. The plain language of Neb. Rev. Stat. § 29-1207(4)(e) (Reissue 2016) and its legislative history both suggest that the Nebraska Legislature intended the 

statutory right to speedy trial to be a personal right which is not lost 

merely because a defendant is joined for trial with codefendants whose 

time for trial has not run.

7. Speedy Trial: Statutes: Time. Nebraska’s speedy trial statute, Neb. 

Rev. Stat. § 29-1207(1) (Reissue 2016), provides that every person 

Nebraska Supreme Court Online Library

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

07/14/2017 01:10 AM CDT
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indicted or informed against for any offense shall be brought to trial 

within 6 months and that such time shall be computed as provided in 

§ 29-1207.

8. ____: ____: ____. To compute the 6-month speedy trial period, a court 

must exclude the day the State filed the information, count forward 6 

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

Stat. § 29-1207(4) (Reissue 2016).

9. Speedy Trial. The primary burden of bringing an accused person to trial 

within the time provided by law is upon the State.

10. Speedy Trial: Dismissal and Nonsuit. If the State does not bring a 

defendant to trial within the permitted time, as extended by any periods excluded under Neb. Rev. Stat. § 29-1207(4) (Reissue 2016), the 

defendant is entitled to absolute discharge from the offense charged.

11. Speedy Trial: Proof. The burden of proof is on the State to show, by a 

preponderance of the evidence, that one or more of the excluded periods 

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

12. Speedy Trial: Joinder. The plain language of Neb. Rev. Stat. 

§ 29-1207(4)(e) (Reissue 2016) contains three elements that must 

be satisfied for the codefendant exclusion to be applicable: (1) The 

defendant’s case must be joined for trial with that of a codefendant 

as to whom the speedy trial time has not run, (2) the period of delay 

must be reasonable, and (3) there must be good cause for not granting 

a severance.

13. Speedy Trial: Joinder: Pretrial Procedure: Waiver. A joined codefendant’s failure to request a severance before his or her speedy trial time 

expires has the practical effect of waiving the possibility of a severance, 

but does not result in a waiver of the right to speedy trial.

14. Speedy Trial: Joinder: Motions to Dismiss: Time. In cases where a 

joint trial is set for a date certain when the defendant files his or her 

motion for absolute discharge, the period of delay for purposes of Neb. 

Rev. Stat. § 29-1207(4)(e) (Reissue 2016) is determined by first calculating the defendant’s speedy trial time absent the codefendant exclusion and then determining the number of days beyond that date that the 

joint trial is set to begin.

15. Speedy Trial: Joinder: Words and Phrases. For purposes of Neb. Rev. 

Stat. § 29-1207(4)(e) (Reissue 2016), “good cause” means a substantial 

reason; one that affords a legal excuse. Good cause is something that 

must be substantial, but is also a factual question dealt with on a caseby-case basis.

Appeal from the District Court for Scotts Bluff County: Leo

Dobrovolny, Judge. Affirmed.
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STATE v. BEITEL

Cite as 296 Neb. 781

Robert O. Hippe and Kyle J. Long, of Robert Pahlke Law 

Group, P.C., L.L.O., for appellant.

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

for appellee.

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

Kelch, and Funke, JJ.

Stacy, J.

Roger Beitel appeals from an order denying his motion 

for absolute discharge. He contends the district court misapplied the codefendant exclusion under Neb. Rev. Stat. 

§ 29-1207(4)(e) (Reissue 2016) when computing time under 

Nebraska’s speedy trial statutes.1 Finding no clear error, 

we affirm.

I. FACTS

Roger and his father Allen Beitel were both charged in the 

district court for Scotts Bluff County with criminal conspiracy 

to commit felony theft in an aggregate amount of more than 

$1,500. The information against Allen was filed July 1, 2015, 

and the information against Roger was filed July 15. At Allen’s 

arraignment, his case was set to be tried during the jury term 

beginning October 5. At Roger’s arraignment, his case was set 

to be tried during the jury term beginning November 2.

On September 21, 2015, Allen filed a motion to continue 

trial in his case because he was waiting on discovery materials from the State. The following day, the State moved to join 

Roger’s and Allen’s cases for trial.

On October 5, 2015, a hearing was held on Allen’s motion 

to continue and the State’s motion to join the cases for trial. 

Both Roger and Allen were present at the hearing and represented by counsel. During the hearing, Allen expressly waived 

his right to speedy trial, and trial in Allen’s case was continued 

to a date to be determined. Roger’s speedy trial time was not 

1 See Neb. Rev. Stat. §§ 29-1207 to 29-1209 (Reissue 2016).
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addressed during the October 5 hearing. At the close of the 

hearing, the State’s motion for joinder was taken under advisement. In an order entered November 18, the court granted the 

motion to join Roger’s and Allen’s cases for trial.

A joint pretrial conference was held January 5, 2016. At 

the outset of the pretrial conference, the court discussed trial 

scheduling. The attorneys advised the court they expected trial 

would last 5 days. The court indicated a preference for trying 

the case during the first week of February because there were 

“five [full] days available then” and the court was concerned 

the January jury pool was not large enough to accommodate 

the peremptory strikes of two defendants. The joint trial was 

set for the February 2016 jury term, with jury selection to 

begin on February 1.

At the conclusion of the pretrial conference, Roger’s counsel 

revisited the trial scheduling issue, stating:

Your Honor, just to put it on the record, and I know we 

discussed this beforehand if this is better handled in a 

motion, but . . . I believe that we have an objection to 

scheduling of the trial in February, as it exceeds the 

speedy trial date for [Roger].

Roger’s counsel noted that the prosecutor had provided the 

court “with a memorandum specifying that [Roger’s] speedy 

trial date runs on January 24th if he is not considered to be 

bound to [Allen’s] speedy trial date.” Counsel indicated he was 

raising the issue to give the court an opportunity “to consider 

a separation” of the cases before Roger filed a motion for 

discharge. The court declined to take up either severance or 

discharge during the pretrial conference, stating:

Well, if you want me to hear a motion to [sever], you 

need to file it and if you want me to hear a motion for 

discharge, you need to file that, too. . . .

. . . .

. . . If you want motion hearings before the day of trial, 

get them on file and just schedule them . . . and we’ll get 

them heard.
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No motion to sever was filed. But on January 27, 2016, 

Roger filed a motion for absolute discharge alleging his speedy 

trial time had run on January 24. An evidentiary hearing on the 

motion was held the next day.

At the hearing on the motion to discharge, the court received 

10 exhibits, including (1) the pleadings in Roger’s and Allen’s 

cases, (2) an affidavit from the court clerk listing the jury 

trials scheduled for the January 2016 term and showing that 

the only date without a scheduled jury trial was January 25, 

and (3) several exhibits showing that three of the cases set for 

the January 2016 jury term resulted in a plea or dismissal and 

ultimately were not tried. The court also took judicial notice of 

the exhibits received during the earlier hearing on the motion 

for joinder and took judicial notice of all the filings in Roger’s 

and Allen’s criminal cases.

In an order entered January 29, 2016, the court overruled 

Roger’s motion for absolute discharge. It calculated that the 

6-month statutory speedy trial time2 for Roger would expire on 

January 24 unless the codefendant exclusion of § 29-1207(4)(e) 

applied to exclude additional time. Under that exclusion, a 

court shall exclude “[a] reasonable period of delay when the 

defendant is joined for trial with a codefendant as to whom the 

time for trial has not run and there is good cause for not granting a severance.”3

The court found the State had met its burden of proving each 

of the factors under § 29-1207(4)(e). Specifically, the court 

found that (1) Roger’s case had been joined for trial with a 

codefendant whose speedy trial time had not run, (2) the period 

of delay was reasonable because the joint trial was set to begin 

just 8 days after Roger’s speedy trial time would have run, and 

(3) “no good cause would exist for severance.”

Roger timely appealed from the denial of his motion for 

absolute discharge. We granted his petition to bypass the 

Nebraska Court of Appeals.

2 § 29-1207(1).

3 § 29-1207(4)(e).
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II. ASSIGNMENTS OF ERROR

Roger assigns, renumbered and restated, that the trial court 

erred in (1) construing § 29-1207(4)(e) to require that a joined 

codefendant must file a motion to sever in order to preserve his or her statutory right to speedy trial, (2) using the 

longer of the joint defendants’ speedy trial calculations when 

§ 29-1207(4)(e) suggests the shorter of the two should be used, 

(3) finding the period of delay reasonable when earlier trial 

dates were available, and (4) finding the State proved good 

cause for not granting a severance.

III. STANDARD OF REVIEW

[1] As a general rule, 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] Statutory interpretation presents a question of law, for 

which an appellate court has an obligation to reach an independent conclusion irrespective of the determination made by the 

court below.5

IV. ANALYSIS

[3-5] The codefendant exclusion in § 29-1207(4)(e) was 

enacted in 1971,6 and although it has been referenced in 

reported opinions,7 no Nebraska appellate court has yet been 

called upon to interpret or apply it. In construing the provisions of § 29-1207(4)(e), we are guided by familiar principles. Statutory language is to be given its plain and ordinary 

4 State v. Vela-Montes, 287 Neb. 679, 844 N.W.2d 286 (2014); State v. 

Brooks, 285 Neb. 640, 828 N.W.2d 496 (2013).

5 State v. Covey, 290 Neb. 257, 859 N.W.2d 558 (2015); State v. Abdulkadir, 

286 Neb. 417, 837 N.W.2d 510 (2013).

6 1971 Neb. Laws, L.B. 436. 

7 State v. Lafler, 225 Neb. 362, 405 N.W.2d 576 (1987), abrogated on other 

grounds, State v. Oldfield, 236 Neb. 433, 461 N.W.2d 554 (1990); State v. 

Alcaraz, 8 Neb. App. 215, 590 N.W.2d 414 (1999).
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meaning, and an appellate court will not resort to interpretation 

to ascertain the meaning of statutory words which are plain, 

direct, and unambiguous.8 It is not within the province of a 

court to read a meaning into a statute that is not warranted 

by the language; neither is it within the province of a court to 

read anything plain, direct, or unambiguous out of a statute.9 In 

reading a statute, a court must determine and give effect to the 

purpose and intent of the Legislature as ascertained from the 

entire language of the statute considered in its plain, ordinary, 

and popular sense.10

1. No Unitary Speedy Trial Clock

As a preliminary matter, we note the State asks this court to 

interpret § 29-1207(4)(e) in a way that would impose a unitary 

speedy trial clock on all joined codefendants, measured by 

the codefendant with the most time remaining. We decline to 

adopt such a construction, because it is not supported by the 

plain language of the statute or the legislative history.

In State v. Alvarez,

11 we addressed the history of the adoption of the Nebraska speedy trial act and recognized that 

our act is “substantially similar to Standards 2.2 and 2.3 of 

the Standards Relating to Speedy Trial, recommended by the 

American Bar Association Project on Minimum Standards for 

Criminal Justice, Approved Draft, 1968” (ABA Standards). 

The legislative history of the Nebraska speedy trial act also 

indicates our Legislature intended to adopt the ABA Standards 

when it enacted the speedy trial act.12

8 State v. Sikes, 286 Neb. 38, 834 N.W.2d 609 (2013); State v. Parks, 282 

Neb. 454, 803 N.W.2d 761 (2011).

9 State v. Warriner, 267 Neb. 424, 675 N.W.2d 112 (2004); State v. Gartner, 

263 Neb. 153, 638 N.W.2d 849 (2002). 

10 State v. Mucia, 292 Neb. 1, 871 N.W.2d 221 (2015); State v. Huff, 282 

Neb. 78, 802 N.W.2d 77 (2011).

11 State v. Alvarez, 189 Neb. 281, 289, 202 N.W.2d 604, 609 (1972).

12 Floor Debate, L.B. 436, 82d Leg., 1st Sess. (Apr. 15, 1971) (statement of 

Senator David Stahmer).
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The ABA Standards included commentary related to the language used by our Legislature in § 29-1207(4)(e):

“This standard emphasizes that the right to a speedy trial 

is a personal right which is not lost merely by the defendant being joined for trial with other defendants as to 

whom the running of the time limitations has been interrupted. Thus, if defendant A and defendant B are joined 

for trial, A’s right to speedy trial should not ordinarily be 

impaired by the fact that B has requested or consented to 

a continuance, is not available for trial, etc. However, the 

standard would permit the trial judge, in his discretion, 

to extend the time for A’s trial with B for a reasonable 

period of time for good cause. In such a case the question 

for the judge is whether the need to try A and B together 

is sufficiently great to justify some modest extension of 

the time limits applicable to A.”13

In requesting that Nebraska’s codefendant exclusion be 

construed to create a unitary speedy trial clock for all joined 

codefendants, the State relies extensively on cases interpreting 

the federal Speedy Trial Act of 1974. Like Nebraska’s speedy 

trial act, the federal act contains a codefendant exclusion. 

However, the language used by Congress in its codefendant 

exclusion differs from that used by our Legislature.

In adopting the federal act, Congress intentionally changed 

the language of the codefendant exclusion from that promulgated by the ABA Standards.14 The federal act contains no 

“good cause” requirement and instead provides that “[a] reasonable period of delay [may be excluded] when the defendant 

is joined for trial with a codefendant as to whom the time 

for trial has not run and no motion for severance has been 

granted.”15 The U.S. Supreme Court has held the language of 

13 Miller v. State, 706 P.2d 336, 340 (Alaska App. 1968) (quoting commentary 

to ABA Standard 2.3(g)).

14 See United States v. Payden, 620 F. Supp. 1426 (1985).

15 18 U.S.C. § 3161(h)(6) (2012).
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the federal codefendant exclusion imposes a general rule that 

all joined codefendants fall within the speedy trial computation 

of the latest codefendant.16 A corollary of this federal “unitary 

‘[s]peedy [t]rial [c]lock’” rule is that an exclusion of time 

that applies to one joined codefendant generally applies to all 

joined codefendants.17

[6] Because the federal codefendant exclusion is different 

in terms of both language and legislative history, we do not 

interpret § 29-1207(4)(e) to impose a unitary speedy trial clock 

on all joined codefendants. Instead, we find that the Nebraska 

Legislature intended the statutory right to speedy trial to be a 

personal right which is not lost merely because a defendant 

is joined for trial with a codefendant whose time for trial has 

not run.

2. Excluded Time Under

§ 29-1207(4)(e)

[7,8] Nebraska’s speedy trial statute, § 29-1207(1), provides: 

“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.” To compute the 

6-month period, a court must exclude the day the State filed 

the information, count forward 6 months, back up 1 day, and 

then add any time excluded under § 29-1207(4).18

[9-11] The primary burden of bringing an accused person to 

trial within the time provided by law is upon the State.19 If the 

State does not bring a defendant to trial within the permitted 

time, as extended by any periods excluded under § 29-1207(4), 

the defendant is entitled to absolute discharge from the offense 

16 Henderson v. United States, 476 U.S. 321, 106 S. Ct. 1871, 90 L. Ed. 2d 

299 (1986).

17 United States v. Payden, supra note 14, 620 F. Supp. at 1427. Accord, 

United States v. Piteo, 726 F.2d 50 (2d Cir. 1983); United States v. 

Campbell, 706 F.2d 1138 (11th Cir. 1983).

18 See State v. Betancourt-Garcia, 295 Neb. 170, 887 N.W.2d 296 (2016).

19 State v. Knudtson, 262 Neb. 917, 636 N.W.2d 379 (2001).
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charged.20 The burden of proof is on the State to show, by 

a preponderance of the evidence, that one or more of the 

excluded periods under § 29-1207(4) are applicable.21

Section 29-1207(4) identifies the periods of time which 

“shall be excluded in computing the time for trial.” In this 

appeal, we are concerned primarily with subsection (4)(e), the 

codefendant exclusion, which requires courts to exclude

[a] reasonable period of delay when the defendant is 

joined for trial with a codefendant as to whom the time 

for trial has not run and there is good cause for not granting a severance. In all other cases, the defendant shall be 

granted a severance so that he or she may be tried within 

the time limits applicable to him or her[.]

[12] The plain language of § 29-1207(4)(e) contains three 

factors that must be satisfied for the codefendant exclusion to 

be applicable: (1) The defendant’s case must be joined for trial 

with that of a codefendant as to whom the speedy trial time 

has not run, (2) the period of delay must be reasonable, and (3) 

there must be good cause for not granting a severance.

(a) Filing Motion to Sever

Before we address whether the statutory factors were satisfied in the instant case, we pause to address whether a motion to 

sever must be filed to invoke the provisions of § 29-1207(4)(e). 

Both parties raise this issue. Roger assigns that the trial court 

erred by construing § 29-1207(4)(e) to require him to file a 

motion to sever in order to preserve his statutory right to a 

speedy trial. And the State argues Roger waived his right to a 

speedy trial by failing to make a motion to sever at a time that 

would have permitted his case to be tried within the time limits 

applicable to him. Both parties are incorrect.

Roger’s assignment of error is not supported by the record, 

because the trial court neither held nor suggested that Roger 

20 § 29-1208.

21 See State v. Knudtson, supra note 19.
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waived his right to a speedy trial by not filing a motion to 

sever. And the State’s argument that a joined codefendant 

waives the right to a speedy trial by failing to request a severance is also flawed.

The plain language of § 29-1207(4)(e) references good cause 

for “granting a severance,” and the term “granting” certainly 

connotes the need for a triggering request of some sort. Such 

a triggering request is particularly important if a defendant 

wants the relief afforded by the second portion of subsection 

(4)(e): “grant[ing] a severance so that he or she may be tried 

within the time limits applicable to him or her.” Obviously, 

the severance remedy of § 29-1207(4)(e) is available only 

when the issue of severance is raised before the defendant’s 

speedy trial time expires. Indeed, two other state courts that 

have addressed the applicability of language identical to that of 

§ 29-1207(4)(e) have suggested that it is the defendant’s burden to raise the speedy trial issue prior to the time when his or 

her speedy trial clock would otherwise expire.22

Here, Roger raised an objection to the trial date on the 

ground it was outside his statutory speedy trial time. But 

despite the court’s direction that he file a motion to sever if 

he wanted the court to consider that issue before trial, Roger 

instead waited until the speedy trial time applicable to him 

expired, and then filed a motion for absolute discharge. By following this procedure, Roger made a calculated choice that left 

only two possible outcomes.

The first possible outcome was that the court would find 

the State had proved all the factors of § 29-1207(4)(e). If 

this occurred, the court would calculate Roger’s speedy trial 

time, excluding time required by § 29-1207(4)(e), and overrule Roger’s motion for discharge. The second possible outcome was that the court would find the State had not proved 

all the factors of § 29-1207(4)(e). If this occurred, it would 

22 Miller v. State, supra note 13; People v. Hernandez, 829 P.2d 392 (Colo. 

App. 1991).
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be too late to grant the relief referenced in the second sentence of § 29-1207(4)(e)—a severance to allow Roger to be 

tried “within the time limits applicable to him.” So instead 

of a severance, the court would calculate Roger’s speedy trial 

time without excluding any additional period of time under 

§ 29-1207(4)(e), and Roger would be entitled to an absolute 

discharge under § 29-1208.

[13] As such, while it is correct that Roger’s failure to 

request a severance before his speedy trial time expired had the 

practical effect of waiving the possibility of a severance, it is 

incorrect to say the procedure he used resulted in a waiver of 

his right to speedy trial.23

(b) Factors of § 29-1207(4)(e) 

Were Satisfied

Here, the parties agree the trial court correctly found the 

first factor of § 29-1207(4)(e) was satisfied; Roger’s case was 

joined for trial with Allen’s case, and when Roger filed his 

motion for discharge, the speedy trial time for Allen had not 

run. The parties disagree on whether the State proved, by a 

preponderance of the evidence, the remaining two factors of 

§ 29-1207(4)(e). We address each factor in turn.

(i) Reasonableness of Delay

In considering the reasonableness of the delay, the trial court 

began by identifying the period of time to be measured. The 

court concluded, and all parties agree, that without factoring 

in the codefendant exclusion, Roger’s speedy trial time would 

have expired January 24, 2016, due to a pretrial discovery 

motion that extended the 6 months under § 29-1207(4)(a). 

The court thus concluded the critical period was the 8 days 

between January 24 and February 1 (the day the joint trial was 

set to begin).

[14] In a case such as this, where the joint trial was set 

for a date certain when the motion for absolute discharge 

23 See State v. Alvarez, supra note 11.
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was filed, we agree that the period of delay for purposes of 

§ 29-1207(4)(e) is determined by first calculating the defendant’s speedy trial time absent the codefendant exclusion and 

then determining the number of days beyond that date that the 

joint trial is set to begin. To the extent Roger’s second assignment of error asserts, incorrectly, that the trial court measured 

the time period by using Allen’s speedy trial calculation rather 

than Roger’s, we find the assignment meritless.

The trial court expressly found the 8-day period of delay 

reasonable. It referenced exhibit 5, the affidavit of the court 

clerk, which showed that no “week-long” jury settings were 

available during the January 2016 jury term. During the pretrial conference, the court was advised it would take 5 days 

to try the joined cases. The court also expressed concern that 

the January jury pool was not large enough to accommodate 

the peremptory strikes of two defendants. On this record, we 

find no clear error in the court’s finding that the 8-day delay 

was reasonable.

(ii) Good Cause for Not 

Granting Severance

In its order, the trial court expressly found that “no good 

cause would exist for severance.” The phrasing of this finding does not precisely track the statutory language, which 

requires a finding that there be “good cause for not granting a 

severance.”24 While we emphasize that the statutory standard 

is the proper one, we conclude the trial court’s articulation 

was not material to its analysis of the good cause issue. Our 

review will focus on whether it was clearly erroneous for 

the court to determine there was good cause for not granting 

a severance.

[15] We have not defined “good cause” for purposes of 

§ 29-1207(4)(e), and the statute contains no definition. But 

in the related context of considering “good cause” under the 

24 § 29-1207(4)(e).
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speedy trial provisions of Nebraska’s detainer statute,25 we 

have said “‘[g]ood cause means a substantial reason; one that 

affords a legal excuse.’”26 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.’”27 While 

this definition of good cause is general, we conclude it is a 

fitting definition to apply to our analysis of speedy trial rights 

under § 29-1207(4)(e).

Roger argues the trial court’s only reason for finding good 

cause not to grant a severance was the fact that he never filed 

a motion to sever. While we are persuaded that Roger’s failure to request a severance, particularly after the court invited 

such a motion, is a relevant consideration when determining 

whether there was a sufficient legal excuse for “not granting a 

severance,”28 our reading of the court’s order is not as narrow 

as Roger suggests.29 In discussing good cause for not granting 

a severance, the court’s order provided:

[Roger’s] case was joined with [Allen’s] case on 

November 18, 2015, before expiration of the statutory 

speedy trial time for either case. No severance has been 

requested by Roger since the cases were ordered consolidated. The [c]ourt has considered the evidence received 

today, exhibits 4-13, and also exhibits 1-3 received at 

the hearing on consolidation. The [c]ourt also takes 

judicial notice of all filed documents in [both criminal 

cases]. The [c]ourt finds that no good cause would exist 

for severance.

Here, the court considered more than just Roger’s failure to 

request a severance. It also considered the evidence offered in 

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

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

27 Id.

28 § 29-1207(4)(e).

29 See U.S. v. Maryea, 704 F.3d 55 (1st Cir. 2013) (and cases cited therein). 

See, also, State v. Alvarez, supra note 11.
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support of the original joinder, the exhibits offered by the parties during the hearing on the motion for discharge, and all the 

filings in each criminal case. This evidence supports the court’s 

conclusion that there was a substantial reason for not granting 

a severance, sufficient to satisfy good cause. On this record, we 

find no clear error in the trial court’s determination that there 

was good cause not to grant a severance just a few days before 

trial was set to begin.

In summary, we find the trial court correctly interpreted 

and applied the codefendant exclusion under § 29-1207(4)(e). 

It did not clearly err in finding that all three factors under 

§ 29-1207(4)(e) were proved by a preponderance of the evidence or in computing Roger’s speedy trial time by excluding 

the 8 days between January 24, 2016, and the start of trial on 

February 1. As such, the court correctly overruled Roger’s 

motion for absolute discharge.

V. CONCLUSION

For the foregoing reasons, we affirm the decision of the 

district court.

Affirmed.