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State of Nebraska, appellee, v. 

Jayston R. Ostermeier, appellant.

___ N.W.2d ___

Filed September 13, 2022. No. A-21-834.

1. Judgments: Speedy Trial: Appeal and Error. 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. Speedy Trial. 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: Good Cause: Words and Phrases. “Good cause,” for 

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

substantial reason and one that affords a legal excuse.

5. Good Cause. Good cause is a factual question dealt with on a case-bycase basis. A district court’s good cause finding must be supported by 

the evidence in the record. The court must make specific findings as to 

the good cause which resulted in the delay.

6. Motions for Continuance. Evidence of good cause can be properly 

presented at the hearing on the motion for absolute discharge and need 

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

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

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

a legal excuse objectively existed at the time of the delay.

Nebraska Supreme Court Online Library

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

09/13/2022 08:07 AM CDT
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8. Speedy Trial: Good Cause. As a general matter, the COVID-19 pandemic and the public health interests attendant thereto may provide good 

cause for delays.

9. Appeal and Error. An appellate court is not obligated to engage in an 

analysis that is not necessary to adjudicate the case and controversy 

before it.

Appeal from the District Court for Butler County: James C. 

Stecker, Judge. Affirmed.

Neal J. Valorz, of Sipple, Hansen, Emerson, Schumacher, 

Klutman & Valorz, for appellant.

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

Klein for appellee.

Pirtle, Chief Judge, and Bishop and Arterburn, Judges.

Arterburn, Judge.

INTRODUCTION

Jayston R. Ostermeier appeals from an order of the district 

court for Butler County which denied his motion for absolute 

discharge. Ostermeier argues that the district court erred when 

it found that good cause existed to exclude certain periods 

of time due to the COVID-19 pandemic and in finding that 

his prior counsel consented to a period of delay. We find that 

Ostermeier’s statutory speedy trial rights were not violated. 

Therefore, we affirm.

BACKGROUND

On August 14, 2020, Ostermeier was charged by information with one count of first degree sexual assault, a Class II 

felony, and one count of contributing to the delinquency of a 

minor, a Class I misdemeanor. On October 6, Ostermeier was 

arraigned and pled not guilty. During the course of the hearing, 

the district court ordered that the case be set for jury trial to 

occur in the January 11, 2021, jury term. We note that during 

the course of the arraignment, the court told Ostermeier that 
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the case could be set for trial in either the November 2020 

term or the January 2021 term. Ostermeier’s counsel requested 

that trial be set in January, noting that the later setting would 

provide adequate time to allow him to conduct discovery and 

negotiate a plea agreement.

No written journal entry or order was produced from the 

October 6, 2020, hearing which memorialized the trial setting. The district court’s bailiff, Tracy Svoboda, who normally 

inputs trial dates into journal entries, was not present at the 

hearing due to an illness. According to her affidavit received at 

the hearing on the motion to discharge, had she been present 

for the hearing, a journal entry would have been created showing the trial date which was set.

On November 24, 2020, the district court entered an amended 

administrative order (the November 2020 Administrative 

Order) which indicated that the “risk dial” in all three health 

districts of Saunders, Butler, and Colfax Counties had moved 

from “‘High’” to “‘Severe’” as of November 19. As a result, 

the court found that changes in procedure and scheduling were 

necessary to protect the public. The court determined that good 

cause existed to continue all criminal jury trials that were 

scheduled during December 2020 to a date after January 8, 

2021, due to the heightened health risk to jurors, court personnel, litigants, and interpreters.

On December 22, 2020, a general order was entered showing all of the criminal cases from Butler, Saunders, and Colfax 

Counties that were set for trial during the January 11, 2021, 

jury term. Five cases were listed and placed into an order of 

priority. This case was not listed in the general order. In her 

affidavit, Svoboda explained that had a journal entry been 

entered from the October 6, 2020, hearing memorializing the 

trial setting, the case would have been included in the general order.

On December 23, 2020, the district court issued orders continuing all of the jury trials that were scheduled to commence 

during the January 11, 2021, jury term for good cause. The 
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district court found that the current “risk dial” for COVID-19 

remained at “‘high’” and was nearly reaching “‘severe.’” The 

district court found that the next available date for the court 

to conduct jury trials was the trial term commencing March 

15. The December 2020 order was filed in all five cases for 

defendants who had jury trials scheduled for the January 11, 

2021, jury term. However, because Ostermeier’s case was not 

included on the list of jury trials scheduled for the January 11 

jury term, no order was entered in Ostermeier’s case.

Our record does not demonstrate how Ostermeier was 

informed that trial would not occur in January 2021. However, 

a status hearing was scheduled for January 26. That hearing 

was continued pursuant to an order entered by the court on 

January 25. The court found that the status hearing should be 

continued to February 2 due to inclement weather.

At the status hearing on February 2, 2021, a discussion occurred between the court, the county attorney, and 

Ostermeier’s counsel about when trial should be rescheduled. 

Ostermeier’s counsel requested that the case be set for trial 

with additional status hearings scheduled as needed. Defense 

counsel indicated that he did not know if trials were currently 

occurring due to the COVID-19 pandemic. The following 

exchange occurred:

THE COURT: Well, we’ll probably put it on the May 

trial term and, hopefully, by then they will be. So I’m 

looking at May 10th through the 14th is the jury term. 

We’ll place it on that jury term. Do you want a status 

hearing in late March?

[Ostermeier’s counsel:] That would be fine. That would 

be fine, Your Honor.

THE COURT: Okay. March —

[Ostermeier’s counsel:] And I’m available May 10th.

There was no further discussion on the record about why the 

trial needed to be held in May 2021.

On April 15, 2021, Ostermeier’s counsel filed a “Motion 

for Discharge,” alleging that the last day to bring Ostermeier 
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to trial was February 22, 2021. In his motion, he requested an 

order of absolute discharge.

On June 22, 2021, the initial trial judge recused herself from 

the case. The judge found that there was a potential conflict 

because her bailiff had been identified as a witness. The case 

was reassigned to a different district court judge.

On July 8, 2021, Ostermeier filed an amended motion for 

discharge, which is the operative motion for purposes of this 

appeal. In his amended motion for discharge, he asserted that 

the last day to bring him to trial was February 15, 2021, and he 

prayed for an order of absolute discharge.

A hearing on the amended motion for discharge was held on 

July 15, 2021. At the hearing, the State offered into evidence 

multiple exhibits. Svoboda authored two affidavits with several attachments which were received into evidence. As stated 

earlier, Svoboda averred that because she was absent due to 

an illness on October 6, 2020, Ostermeier’s trial date was not 

memorialized in a journal entry. In addition, his case was not 

included in the December 22 order which listed the five cases 

that were set for criminal jury trials during the January 11, 

2021, jury term. She explained that because his case was not 

included in the list of cases, the December 23, 2020, order of 

continuance which was entered in the five other cases was not 

entered in his case. Copies of the December 23 orders were 

received in support of Svoboda’s affidavit. Svoboda further 

stated that neither the county attorney, defense counsel, nor the 

clerk of the district court inquired of her regarding the January 

11, 2021, trial setting at any time prior to that date.

Svoboda further averred that the cases that were initially 

scheduled for the January 11, 2021, jury term were continued until the March 15 jury term. On February 8, a general 

order was issued by the court that showed 17 criminal jury 

trials scheduled for the March jury term. On February 11, an 

“Updated Jury Progression Order” was issued listing 10 cases 

as remaining for the March jury term. Consistent with the setting made at the February 2 hearing, neither of these orders 
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listed the present case. On April 13, a general order was issued 

listing the cases scheduled for the jury term commencing May 

10. That order included the present case among the 12 cases 

set. Svoboda averred that two cases set for the March jury term 

had higher priority than the remaining cases. The remaining 

cases that were not otherwise resolved were continued to the 

May jury term. The court also received a supplemental affidavit from Svoboda. In that affidavit, the caseload presided over 

by the original trial judge is detailed. The affidavit reveals that 

680 cases were opened in the three counties in which the trial 

court regularly presides during 2020 and that 310 new cases 

were opened by May 31. She also noted that the trial court had 

received assignments of cases in four additional counties during that period. Svoboda then stated that during 2020 and 2021, 

the COVID-19 pandemic delayed the progression of cases. 

She noted that the docket moved forward only to the extent 

allowable under “CDC guidelines,” the result being significant 

disruption and congestion of the docket and a large backlog of 

cases waiting for disposition.

Ostermeier offered, and the court received, a publication by 

the Nebraska Supreme Court and the Pandemic Bench Book 

Task Force entitled the “Nebraska Pandemic Bench Book.” 

The court also received Ostermeier’s offer of administrative 

orders from the Supreme Court issued in March and April 

2020. Both orders acknowledge the ongoing health emergency 

and provide guidance as to who should or should not appear 

for hearings. Both orders find that only the Chief Justice of 

the Nebraska Supreme Court can declare a nonjudicial day and 

that the courts should remain open while following emergency 

preparedness guidelines.

During the hearing, Ostermeier called the clerk of the Butler 

County District Court to testify. She identified two cases that 

had been set for jury trial before other judges in February 

2021. However, according to her testimony, neither case was 

tried in February and, in fact, one was tried in May. Orders 

filed in both cases during February were also offered and 
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received. In both cases, the defendants moved to continue trial 

to a later date.

The district court denied Ostermeier’s amended motion for 

discharge. The district court determined that pursuant to the 

November 2020 Administrative Order, there was good cause 

to continue all jury trials to a date after January 8, 2021. The 

December 23, 2020, order was filed for all other criminal jury 

trials that were scheduled for the January 11, 2021, jury term. 

However, the district court acknowledged that no order was 

entered in the present case. The district court also found that 

Ostermeier’s counsel’s statements at the February 2 hearing 

that a May 10 trial would be “fine” and that he was “available 

May 10th” constituted consent of Ostermeier or his counsel for 

an additional delay.

The district court explained that the information was filed on 

August 14, 2020. As such, without any excludable periods, the 

last day to bring Ostermeier to trial would have been February 

14, 2021. The district court found that the time period from 

August 14 to December 23, 2020, ran against the State. The 

time periods from December 23, 2020, to January 11, 2021, 

and from January 11 to February 2, 2021, were excludable 

from the speedy trial calculation for good cause due to the pandemic. Similarly, the district court found that the time period 

from February 2 to May 10, 2021, was excludable not only for 

good cause due to the pandemic, but also due to Ostermeier’s 

consent to have the trial delayed.

Ostermeier now appeals to this court.

ASSIGNMENT OF ERROR

On appeal, Ostermeier’s sole assignment of error is that 

the district court erred in overruling his amended motion for 

discharge.

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 
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erroneous. State v. Hernandez, 309 Neb. 299, 959 N.W.2d 

769 (2021). 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. Id.

ANALYSIS

Ostermeier argues that contrary to the district court’s findings in denying his motion for absolute discharge, no good 

cause existed in his specific case relating to the COVID-19 

pandemic and that he neither explicitly nor implicitly consented to any continuance of the trial. He further notes that no 

written order was entered setting trial until February 2, 2021, 

nor were any orders entered which continued the case due to 

the pandemic. As such, he believes that his speedy trial rights 

were violated.

Good Cause.

In Nebraska, a criminal defendant’s statutory speedy trial 

rights are governed by Neb. Rev. Stat. §§ 29-1207 and 29-1208 

(Reissue 2016). Section 29-1207 requires that every person 

indicted or informed against for any offense shall be brought to 

trial within 6 months and generally provides that the 6-month 

period shall commence to run from the date the indictment is 

returned or the information filed. See State v. Jennings, 308 

Neb. 835, 957 N.W.2d 143 (2021). The primary burden of 

bringing an accused person to trial within the time provided by 

law is upon the State. State v. Hernandez, supra.

[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 § 29-1207(4) to determine the last day the 

defendant can be tried. State v. Hernandez, supra. If a defendant is not brought to trial before the running of the time for 

trial as provided for in § 29-1207, as extended by excluded 
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periods, he or she shall be entitled to his or her absolute discharge from the offense charged. State v. Hernandez, supra.

[4,5] A period of delay resulting from a continuance 

granted at the request or with the consent of the defendant 

or his or her counsel is excludable. § 29-1207(4)(b). Periods 

of delay are excludable if the court finds that they are for 

good cause. § 29-1207(4)(f). “Good cause,” for purposes of 

§ 29-1207(4)(f), is not defined by statute, but the Supreme 

Court has found that good cause means a substantial reason 

and one that affords a legal excuse. See State v. Moody, 311 

Neb. 143, 970 N.W.2d 770 (2022). Good cause is a factual 

question dealt with on a case-by-case basis. Id. A district 

court’s good cause finding must be supported by the evidence 

in the record. Id. The court must make specific findings as to 

the good cause which resulted in the delay. State v. Brown, 

310 Neb. 224, 964 N.W.2d 682 (2021). An appellate court will 

give deference to such factual findings unless they are clearly 

erroneous. Id.

We note that the Supreme Court has stated that docket congestion can be a good cause for delay in speedy trial calculations. State v. Sommer, 273 Neb. 587, 731 N.W.2d 566 (2007). 

And, in general, the COVID-19 pandemic has been found to 

constitute good cause for delay. See State v. Brown, supra.

The Supreme Court has recently addressed good cause findings made by trial courts due to the COVID-19 pandemic in 

several cases. In State v. Chase, 310 Neb. 160, 964 N.W.2d 

254 (2021), Amandah Chase filed a motion for absolute discharge asserting that her statutory and constitutional rights 

to a speedy trial were violated. The record indicated that the 

case was continued one time on Chase’s motion and three 

times by the trial court sua sponte. However, at the time the 

trial court on its own decided to continue the case, it made no 

findings as to good cause. At the hearing on Chase’s motion 

for absolute discharge, the State offered into evidence and 

asked the county court to take judicial notice of 11 exhibits 

containing administrative orders and other documents of the 
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Supreme Court and Douglas County relating to the COVID-19 

pandemic. Included in this evidence was an affidavit from 

the clerk of the district court who averred that due to the 

COVID-19 pandemic, he would be unable to notify and 

impanel prospective jurors for a jury trial. In addition, there 

was an administrative order from the presiding district court 

judge, continuing for good cause all jury trials because the 

court could not conduct jury trials within the social distancing 

guidelines for protection of the public during the pandemic. 

Ultimately, the county court found that the continuances were 

on the court’s own motions and that the State had proved by 

a preponderance of the evidence that Chase’s rights were not 

violated because the 96 days attributable to the court’s decisions to delay the case were excludable for good cause due to 

the nationwide COVID-19 pandemic.

[6,7] On appeal, the Supreme Court in Chase affirmed the 

order of the district court which affirmed the county court’s 

findings. The Supreme Court found that the denial of Chase’s 

motion for absolute discharge was proper because the State 

presented competent evidence that conditions relating to the 

COVID-19 pandemic were present at the time of the judicial 

delays. The Supreme Court first explained that when a trial 

court makes a sua sponte decision to delay trial, the statutory speedy trial rights of the defendant are implicated. Thus, 

exclusion of the period attributable to such delay is governed 

by a showing on the record of good cause as described by 

§ 29-1207(4)(f). State v. Chase, supra. The Supreme Court 

found, however, that evidence of good cause can be properly 

presented at the hearing on the motion for absolute discharge 

and need not be articulated at the time of the court’s sua 

sponte order delaying trial. See id. The only timing requirement implicit in § 29-1207(4)(f) is that the substantial reason 

affording a legal excuse objectively existed at the time of the 

delay. State v. Chase, supra. Ultimately, the Supreme Court 

found that the State presented sufficient evidence that conditions relating to the COVID-19 pandemic existed at the time 
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of the delay and that these conditions provided good cause for 

continuing the case. Id.

Subsequent to the decision in State v. Chase, supra, the 

Supreme Court released its opinion in State v. Brown, 310 

Neb. 224, 964 N.W.2d 682 (2021). In Brown, the Supreme 

Court affirmed the order of the district court for Lancaster 

County which overruled Joshua Brown’s motion for absolute 

discharge. At the hearing on Brown’s motion for discharge, 

the State presented evidence that included the specific continuance orders of the district court which contained its own 

findings regarding the pandemic, as well as newspaper articles 

regarding restrictions imposed by the district court related 

to the COVID-19 pandemic. In addition, the trial court took 

judicial notice of general orders issued by the Lancaster 

County District Court related to the pandemic. Brown presented evidence of Supreme Court orders entered in April and 

June 2020 to the effect that judicial mission essential functions shall be implemented. In its order ruling on Brown’s 

motion to discharge, the trial court also took note of various 

orders and declarations of public officials and directives of 

health agencies.

The Supreme Court in Brown concluded that the trial court’s 

finding of good cause for the continuance was not clearly 

erroneous. The Supreme Court considered all the evidence 

that was presented at the hearing on the motion to discharge 

and the facts of which the district court properly took judicial 

notice. As a result, the Supreme Court found that circumstances caused by the pandemic supported the trial court’s 

finding of good cause. However, the Supreme Court cautioned 

that this finding was within the context of the COVID-19 pandemic and the circumstances and conditions that existed at the 

time the continuances were ordered. Therefore, the Supreme 

Court in Brown concluded that in the context and under the 

circumstances in which the court ordered the continuances in 

March and May 2020, the court’s finding that such continuances were for good cause was not clearly erroneous.
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[8] In State v. Moody, 311 Neb. 143, 970 N.W.2d 770 (2022), 

the Supreme Court acknowledged that State v. Brown, supra, 

provided that as a general matter, the COVID-19 pandemic and 

the public health interests attendant thereto may provide good 

cause for delays. However, the Supreme Court reiterated that 

the determination in Brown was based on the specific context 

and circumstances in existence at the time it was decided. State 

v. Moody, supra. The Supreme Court then addressed whether 

good cause existed with respect to delays due to the COVID-19 

pandemic between November 2020 and April 2021. Id.

At the hearing on the defendant’s motion for discharge 

in Moody, the trial court took judicial notice of the files in 

the case and received into evidence an affidavit from the 

court’s bailiff, various orders filed by the trial court, and 

the orders filed by the presiding judge of the district court. 

The record indicated that the trial court’s continuance orders 

were prompted by the presiding district court judge’s orders 

requiring all judges of the district court to limit the number 

of criminal trials and to continue all other trials that required 

a jury. Id. In addition, the presiding district court judge’s 

orders described the specific context and circumstances that 

prompted these delays, noting that there were ongoing social 

distancing restrictions and a resurgence of the COVID-19 

pandemic which resulted in a backlog of criminal and civil 

cases requesting jury trials. Id.

On appeal, the Supreme Court in Moody affirmed the decision of the district court finding that the delays were excludable 

due to good cause. The Supreme Court found that there was 

sufficient evidence regarding the context and circumstances 

that were in existence at the specific periods that the continuances were ordered for reasons relating to the COVID-19 

pandemic, the related public health concerns and restrictions, 

the effect of the pandemic, and related restrictions on the district court’s ability to hold jury trials. Id.

With the reasoning of these cases in mind, we now turn to 

the present case. Ostermeier was charged by information on 
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August 14, 2020. Ostermeier was arraigned on October 6, and 

a jury trial was ordered to commence during the January 11, 

2021, jury term. In November 2020, the district court recognized the ongoing health emergency that existed and, by way 

of its November 2020 Administrative Order, continued all jury 

trials scheduled in the December 2020 jury term to January 

2021 due to the resurgence of the COVID-19 pandemic. The 

December 23, 2020, orders continued jury trials for the January 

11, 2021, jury term to March 15. According to Svoboda, only 

two of the cases continued were actually held during the March 

term. Each of these cases had higher priority than Ostermeier’s 

case. All other criminal jury trials that were scheduled for the 

March 15, 2021, jury term were continued to the May 10 jury 

term. Likewise, during the course of the February 2 hearing, 

the district court continued Ostermeier’s jury trial to the May 

10 jury term. Although the district court did not articulate its 

good cause for continuing the jury trial following the February 

2 hearing, the State presented evidence at the hearing on the 

amended motion for discharge that the trial was continued due 

to the COVID-19 pandemic, the court’s diminished ability to 

hold jury trials during this time, and the backlog of cases that 

was created due to the pandemic.

Ostermeier points to the administrative orders of the Supreme 

Court and the Nebraska Pandemic Bench Book in support of 

his argument that good cause did not exist for delaying trial 

in this case. He notes that the administrative orders declare 

that the trial courts are to remain open. He cites § 5.0.3 of 

the Nebraska Pandemic Bench Book for the proposition that 

“the constitutional right to a speedy trial and an impartial jury 

requires courts to continue to perform this function.”

We first note that throughout the period of the pandemic, 

the Supreme Court has issued administrative orders related to 

the functioning of the trial courts. Some of those orders were 

received in State v. Brown, 310 Neb. 224, 964 N.W.2d 682 

(2021). While those orders have required the trial courts to 

stay open, they have not mandated that courts conduct trials 
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and hearings without regard to public health mandates and 

guidance. The court has repeatedly found that health concerns 

generated by the pandemic can constitute good cause for continuing criminal trials. See, State v. Moody, 311 Neb. 143, 970 

N.W.2d 770 (2022); State v. Brown, supra; State v. Chase, 310 

Neb. 160, 964 N.W.2d 254 (2021).

We further note that the Nebraska Pandemic Bench Book 

does not constitute binding authority on the trial courts; rather, 

by its own terms, § 1.0.1 states:

The goal of this Pandemic Bench book is to assist the judicial branch in preparing to face the issues that arise when 

a pandemic or other public health emergency impacts the 

ability to hold court. This resource will provide judges 

with practical suggestions and legal authorities as the 

branch strives to keep courts open during a pandemic.

While the suggestions in the bench book are made for the benefit of judges who must weigh the health of litigants, attorneys, 

court staff, and jurors against the rights of an accused person, 

they do not serve as hard and fast rules. Ostermeier cites us to 

no authority that codifies the guidelines and suggestions set out 

in the bench book.

Ostermeier also cites to the absence of any written orders 

regarding the original trial setting or continuances of that setting prior to the order entered on February 2, 2021. He further 

notes that no findings were made by the court on February 2 

which demonstrate good cause for a continuance. We acknowledge that the written record is devoid of orders regarding the 

trial setting or continuing the trial from the January 11 jury 

term. We note, however, that the lack of written orders was 

explained in the evidence adduced at the time of hearing on 

Ostermeier’s motion for discharge. The written orders were 

not entered because of the absence of the court’s bailiff. There 

was no intentional act or reckless omission which left the 

record incomplete.

More importantly, we find no authority that finds that 

a written order for trial is indispensable for purposes of 
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determining whether a defendant’s speedy trial rights have 

been violated. Ostermeier cites us to Neb. Rev. Stat. § 25-914 

(Reissue 2016), which reads “Every direction of a court or 

judge, made or entered in writing and not included in a judgment, is an order.” First, we note that this statute is found in 

chapter 25 of our statutes relating to civil procedure. But even 

if applicable, the statute does not say that orders made on the 

record in open court are not orders. Here, our record is clear 

that a trial setting was made at the October 6, 2020, arraignment. The parties were present and thereafter operated under 

the assumption that trial would be held during the January 11, 

2021, jury term. The record is also clear that although no order 

can be found in our record that continued the case past January 

11, a status hearing was set for January 25 and then was continued to February 2 due to inclement weather. No motion was 

filed to clarify why the case was not tried on January 11, and 

no inquiry was made to the bailiff or the clerk of the district 

court by either party. We can find no reason why the absence 

of a written order for trial is necessary to our analysis or is 

prejudicial to Ostermeier.

Similarly, while we acknowledge that it would be preferable that there be an order of continuance in our case file 

which demonstrates whether the continuance was entered 

based on a motion by one of the parties or was entered sua 

sponte by the court, we find that given the record provided 

in this case, the absence of such an order does not require us 

to find that Ostermeier’s speedy trial rights were violated. We 

first note our prior discussion of State v. Chase, 310 Neb. 160, 

964 N.W.2d 254 (2021). The Supreme Court found in Chase

that a court which continues a case sua sponte is not required 

to articulate its reasons for good cause at the time the order 

is entered. Rather, “[t]he only timing requirement implicit in 

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

excuse objectively existed at the time of the delay.” State v. 

Chase, 310 Neb. at 172, 964 N.W.2d at 263. We find that the 

record herein provides sufficient information regarding the 
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31 Nebraska Appellate Reports

STATE V. OSTERMEIER

Cite as 31 Neb. App. 322

delays which occurred to be adequate for the district court and 

this court to make a determination of the issues presented by 

the motion to discharge. We caution that in other cases under 

different circumstances, we may not reach this conclusion. 

But here, despite the omission of written orders of continuance being entered in this case, we nonetheless find that the 

record provided is sufficient.

The record in this case provides sufficient evidence regarding the context and circumstances that were in existence during the specific periods that the continuances were ordered 

in conjunction with this case relating to the COVID-19 pandemic, the related public health concerns and restrictions, 

and the effect of the pandemic and related restrictions on the 

district court’s ability to hold jury trials. The November 2020 

Administrative Order demonstrated that the pandemic had 

reached the “‘Severe’” stage, causing cases set for jury trial 

in December to be continued. While this order does not cover 

the present case, it does demonstrate that cases set prior to this 

case were being added to the January 2021 jury panel. Based 

on the affidavits of Svoboda and the December 23, 2020, 

orders entered in the other cases set for trial during the January 

11, 2021, jury term, the risks associated with the COVID-19 

pandemic had significantly increased, placing the public and 

court personnel at risk. These orders continued additional 

cases, placing additional strain on the district court’s ability to 

hear cases. This congestion of cases resulted in further delays 

which ultimately resulted in many cases being delayed from 

January 2021 to May 2021. Based on the whole of the record, 

there was sufficient evidence to demonstrate that there was 

good cause to continue Ostermeier’s trial from January 11 to 

the February 2 status hearing due to the COVID-19 pandemic 

and inclement weather. There was also sufficient evidence to 

demonstrate that good cause existed to continue the trial to 

the May jury term due to a backlog of cases that had occurred 

due to the pandemic. The evidence demonstrates the dramatic 

rise in the number of cases placed into the March and May 
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31 Nebraska Appellate Reports

STATE V. OSTERMEIER

Cite as 31 Neb. App. 322

jury terms as compared with January. While there was evidence that some cases may have been brought to trial, there 

is no indication that sufficient time existed to try all of the 

backlogged cases prior to the May term. In addition, the fact 

that two cases assigned to other judges were continued to May 

based on reasons other than the pandemic does not negate the 

backlog that remained. Accordingly, we find, as did the district 

court, that the period from December 23, 2020, to February 

2, 2021, was properly excludable for good cause due to the 

COVID-19 pandemic. We further find that the period from 

February 2 until May 10 was excludable based on the backlog of cases created due to the pandemic. As such, we find 

no clear error in the district court’s speedy trial computation 

which found that at the time the motion to discharge was filed, 

52 days remained to bring Ostermeier to trial.

Consent.

[9] Having determined that the district court committed no 

clear error with respect to its exclusion of time based on good 

cause for the delays in trial, we need not express an opinion 

on whether counsel for Ostermeier consented to the May 2021 

trial setting. We further express no opinion on whether counsel 

for Ostermeier moved for a later trial date when he declined 

the court’s offer to set the case for trial in November 2020, 

but, rather, requested that the case be set in January 2021. An 

appellate court is not obligated to engage in an analysis that is 

not necessary to adjudicate the case and controversy before it. 

In re Conservatorship of Abbott, 295 Neb. 510, 890 N.W.2d 

469 (2017).

CONCLUSION

We find no clear error in the district court’s decision to deny 

Ostermeier’s amended motion for absolute discharge.

Affirmed.