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Nebraska Court of Appeals Advance Sheets

30 Nebraska Appellate Reports

STATE v. YOUNG

Cite as 30 Neb. App. 553

State of Nebraska, appellee, v. 

Kevin J. Young, appellant.

___ N.W.2d ___

Filed February 1, 2022. No. A-21-244.

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 that 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: Proof. 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).

4. Speedy Trial. To calculate the deadline for trial under the speedy trial 

statutes, 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).

5. Good Cause. A district court’s good cause findings must be supported 

by evidence in the record, and the State bears the burden of establishing 

facts showing that good cause existed.

6. Speedy Trial: Good Cause: Motions for Continuance. When a trial 

court’s sua sponte decision to delay trial implicates statutory speedy trial 

rights, the exclusion of the period attributable to such delay is governed 

by a showing on the record of good cause as described by Neb. Rev. 

Stat. § 29-1207(4)(f) (Reissue 2016).

7. Speedy Trial: Good Cause. Evidence of good cause is 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.

Nebraska Supreme Court Online Library

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

02/01/2022 09:06 AM CST
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Nebraska Court of Appeals Advance Sheets

30 Nebraska Appellate Reports

STATE v. YOUNG

Cite as 30 Neb. App. 553

8. Speedy Trial: Good Cause: Proof. The burden under Neb. Rev. Stat. 

§ 29-1207(4)(f) (Reissue 2016) is simply that there be “good cause.”

9. Speedy Trial: Good Cause: Appeal and Error. In determining whether 

the trial court clearly erred in finding good cause after a hearing on a 

motion for discharge, an appellate court looks not just to the evidence 

presented at the hearing on the motion for discharge, but to the whole of 

the record.

10. 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.

11. Speedy Trial: Good Cause: Proof: Appeal and Error. An appellate 

court’s review of whether the State met its burden to show good cause 

focuses on the evidence presented to the court at the hearing on the 

motion for discharge and whether the evidence supported the court’s 

finding that good cause existed at the time of the delay. In doing so, an 

appellate court looks not just to the evidence presented at the hearing on 

the motion for discharge, but to the whole of the record.

12. Speedy Trial: Good Cause. When a trial court relies on Neb. Rev. Stat. 

§ 29-1207(4)(f) (Reissue 2016) to exclude time from the speedy trial 

calculation, a general finding of “good cause” will not suffice. Instead, 

the court must make specific findings as to the good cause which 

resulted in the delay.

13. Good Cause: Appeal and Error. An appellate court will give deference to the trial court’s factual findings as to good cause unless they are 

clearly erroneous.

Appeal from the District Court for Douglas County: Thomas 

A. Otepka, Judge. Affirmed.

Thomas C. Riley, Douglas County Public Defender, and 

Tamara T. Mosby for appellant.

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

for appellee.

Pirtle, Chief Judge, and Riedmann and Welch, Judges.

Pirtle, Chief Judge.

INTRODUCTION

Kevin J. Young appeals the order of the district court 

for Douglas County which overruled his motion for absolute 
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Nebraska Court of Appeals Advance Sheets

30 Nebraska Appellate Reports

STATE v. YOUNG

Cite as 30 Neb. App. 553

discharge wherein he alleged a violation of his statutory right 

to a speedy trial. Young claims that the district court erred 

when it concluded that a continuance ordered by the court in 

response to the COVID-19 pandemic was for good cause and 

therefore should be excluded from the calculation of the time 

for bringing him to trial. Based on the reasons that follow, the 

district court’s order is affirmed.

BACKGROUND

On July 9, 2020, the State filed an information charging 

Young with possession of a deadly weapon by a prohibited person, a Class ID felony, under Neb. Rev. Stat. § 28-1206(3)(b) 

(Cum. Supp. 2020). Young filed a motion for discovery on 

July 10, and the district court granted the motion on July 14. 

On December 7, the court set the matter for trial for January 

4, 2021.

On December 11, 2020, the court, on its own motion, continued the January 4, 2021, trial to “the next readily available 

criminal jury panel” due to the COVID-19 pandemic. In its 

order, the court found that “continuing the criminal proceeding due to the current pandemic outweighs [Young’s] right 

to a speedy trial and the period of delay caused by the continuance implemented by this Order are excluded for good 

cause.” It further found that “on December 11, 2020, Judge 

Horatio Wheelock, Presiding District Court Judge entered 

Order MS 20-110 suspending all jury trials through February 

28, 2021 due to a resurgence of the Covid 19 pandemic.” Judge 

Horatio Wheelock’s order and its attachments were attached 

to the court’s December 11, 2020, order for continuance. The 

court excluded the time between December 11 “and [the] jury 

trial” from Young’s speedy trial calculation.

Young filed a motion for discharge on January 20, 2021, 

and a hearing on the motion was held on February 24. The 

State offered four exhibits into evidence: the docket sheet 

from the case; the court’s November 19, 2020, order setting 

a pretrial conference for December 7; the court’s December 
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Nebraska Court of Appeals Advance Sheets

30 Nebraska Appellate Reports

STATE v. YOUNG

Cite as 30 Neb. App. 553

11 order for continuance, as well as all the attachments; 

and the transcript from the December 7 pretrial conference. 

Young offered into evidence administrative orders issued by 

the Chief Justice of the Nebraska Supreme Court on June 

30 and November 6 that outlined procedures for the judicial 

branch with respect to COVID-19. Both administrative orders 

concluded, in part, that “no court shall close unless or until 

the Chief Justice of the Nebraska Supreme Court has issued 

an order declaring a nonjudicial day.” The court received all 

exhibits into evidence.

On March 12, 2021, the district court overruled Young’s 

motion for discharge. It found two periods of time that extended 

the speedy trial clock. First, it found that Young’s motion for 

discovery resulted in 4 excludable days under Neb. Rev. Stat. 

§ 29-1207(4)(a) (Reissue 2016). Second, it found that the 

court’s December 11, 2020, continuance of the January 4, 

2021, scheduled trial date was an excludable period under 

§ 29-1207(4)(f). It concluded that based on exhibit 3 (the 

court’s order for continuance, along with Judge Wheelock’s 

order and the attachments to that order), the State established 

“good cause” under § 29-1207(4)(f), and that the time between 

December 11, 2020, and the jury trial was excludable from the 

speedy trial calculation.

ASSIGNMENT OF ERROR

Young assigns that the district court erred in overruling his 

motion for absolute discharge because the State failed to meet 

its burden to show that good cause existed sufficient to toll his 

speedy trial rights.

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 that will be affirmed on appeal unless clearly 

erroneous. State v. Chase, 310 Neb. 160, 964 N.W.2d 254 

(2021). Under a clearly erroneous standard of review, an 

appellate court does not reweigh the evidence but considers 
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Nebraska Court of Appeals Advance Sheets

30 Nebraska Appellate Reports

STATE v. YOUNG

Cite as 30 Neb. App. 553

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

Young claims that the district court erred when it rejected 

his argument that he was entitled to absolute discharge because 

the State had violated his statutory right to a speedy trial. He 

claims that the court erred when it found that the December 11, 

2020, continuance due to the COVID-19 pandemic was issued 

for good cause under § 29-1207(4)(f).

[3] The statutory right to a speedy trial is set forth in 

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

Section 29-1208 provides that if a defendant is not brought to 

trial within the time provided for in § 29-1207, as extended by 

excluded periods, the defendant will be entitled to absolute discharge from the charged offense. 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. As relevant to this case, § 29-1207(4)(a) 

excludes all time between the time of the filing of a defendant’s 

pretrial motions and their final disposition, and § 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.” 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). State v. Brown, 310 Neb. 224, 964 

N.W.2d 682 (2021).

[4] To calculate the deadline for trial under the speedy 

trial statutes, a court must exclude the day the State filed the 

information, count forward 6 months, back up 1 day, and then 
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30 Nebraska Appellate Reports

STATE v. YOUNG

Cite as 30 Neb. App. 553

add any time excluded under § 29-1207(4). State v. Blocher, 

307 Neb. 874, 951 N.W.2d 499 (2020). In the instant case, the 

information was filed on July 9, 2020, so the last day Young 

could be brought to trial without any excludable periods was 

January 9, 2021.

The district court found, and the parties agree, that an 

excludable time period existed as a result of Young’s motion 

for discovery. Young filed his motion for discovery on July 

10, 2020, and the motion was granted on July 14. The time 

from the filing of the motion for discovery until the order 

was issued is 4 days. That time period is excludable under 

§ 29-1207(4)(a) as a pretrial motion of the defendant and thus 

extended the speedy trial deadline to January 13, 2021. On 

December 7, the district court set the matter for trial on January 

4, 2021. The parties agree that this trial date fell within the 

allowable speedy trial time.

However, Young argues that the court’s December 11, 2020, 

order continuing the January 4, 2021, trial date indefinitely 

due to COVID-19 was not supported by good cause under 

§ 29-1207(4)(f) and thus does not qualify as an excludable 

period. He contends that the State failed to present any evidence that the continuance on December 11, 2020, was for 

good cause. Young acknowledges that the State offered evidence at the motion for discharge, but states that it failed to 

create any kind of record establishing good cause prior to the 

hearing on the motion for discharge. He further argues, “The 

mere existence of the COVID-19 pandemic should be insufficient by itself to show good cause for delays in Young’s case.” 

Brief for appellant at 13.

[5-10] A district court’s good cause findings must be supported by evidence in the record, and the State bears the 

burden of establishing facts showing that good cause existed. 

State v. Brown, supra. When a trial court’s sua sponte decision to delay trial implicates statutory speedy trial rights, the 

exclusion of the period attributable to such delay is governed 

by a showing on the record of good cause as described by 
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Nebraska Court of Appeals Advance Sheets

30 Nebraska Appellate Reports

STATE v. YOUNG

Cite as 30 Neb. App. 553

§ 29-1207(4)(f). State v. Chase, 310 Neb. 160, 964 N.W.2d 254 

(2021). The Nebraska Supreme Court recently explained that 

evidence of good cause is 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. Id. 

The burden under § 29-1207(4)(f) is simply that there be “good 

cause.” State v. Chase, supra. In determining whether the trial 

court clearly erred in finding good cause after a hearing on a 

motion for discharge, an appellate court looks not just to the 

evidence presented at the hearing on the motion for discharge, 

but to the whole of the record. 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.

[11] Accordingly, the State did not need to offer any evidence or create any kind of record, as Young contends, to 

establish good cause prior to the hearing on the motion for discharge. The December 11, 2020, continuance was ordered sua 

sponte by the court and not granted on the State’s motion. The 

State did present evidence at the hearing on Young’s motion 

for discharge. Our review of whether the State met its burden 

to show good cause focuses on the evidence presented to the 

court at the hearing on the motion for discharge and whether 

the evidence supported the court’s finding that good cause 

existed at the time of the delay. See State v. Brown, 310 Neb. 

224, 964 N.W.2d 682 (2021). In doing so, we look not just to 

the evidence presented at the hearing on the motion for discharge, but to the whole of the record. Id.

[12,13] When a trial court relies on § 29-1207(4)(f) to 

exclude time from the speedy trial calculation, a general finding of “good cause” will not suffice. State v. Brown, supra.

Instead, the court must make specific findings as to the good 

cause which resulted in the delay. Id. An appellate court will 

give deference to such factual findings unless they are clearly 

erroneous. Id.
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Nebraska Court of Appeals Advance Sheets

30 Nebraska Appellate Reports

STATE v. YOUNG

Cite as 30 Neb. App. 553

At the hearing on the motion for discharge, the State offered 

exhibit 3 into evidence, which consisted of the court’s December 

11, 2020, order for continuance, along with Judge Wheelock’s 

order and the attachments to that order. Judge Wheelock’s 

order stated that all criminal and civil jury trials scheduled 

to begin between January 4 and February 28, 2021, be continued “to the next available jury trial selection date of each 

Individual District Judge pending further order of the Court.” 

Attached to Judge Wheelock’s order, and presented as part 

of exhibit 3, were the following: (1) a letter dated December 

9, 2020, from Douglas County officials requesting the Chief 

Justice’s approval for an extension to the limited access to 

the courts that was in place at the time and set to expire on 

December 31; (2) a letter dated December 10, 2020, from the 

State Court Administrator granting Douglas County’s request 

to limit access to the courts until February 28, 2021; and (3) 

two press releases dated December 5, 2020, and December 

6, 2020, from the Douglas County Health Department with 

COVID-19 information and recent COVID-19 statistics for 

Douglas County.

In its order overruling Young’s motion for discharge, 

the court found the State established “good cause” under 

§ 29-1207(4)(f) based on exhibit 3. Specifically, the evidence 

showed that Douglas County had received written approval 

from the State Court Administrator to extend its limited access 

plan until February 28, 2021. The limited access plan included 

that no criminal or civil jury trials would be held during the 

timeframe. Upon receiving approval, Judge Wheelock entered 

an order that all criminal jury trials scheduled to begin between 

January 4 and February 28 in Douglas County were continued 

until the next available jury trial selection date.

We conclude that the district court did not err in finding 

that the State established “good cause” under § 29-1207(4)(f) 

for the court’s December 11, 2020, continuance. We note that 

our determination in this respect considers the context of 

the COVID-19 pandemic circumstances and conditions that 
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Nebraska Court of Appeals Advance Sheets

30 Nebraska Appellate Reports

STATE v. YOUNG

Cite as 30 Neb. App. 553

existed at the time the continuance was ordered. See State v. 

Brown, supra. The time between December 11, 2020, and the 

jury trial is excludable from the speedy trial calculation.

CONCLUSION

We conclude that Young’s statutory right to a speedy trial 

was not violated and that therefore, the district court did not err 

when it overruled Young’s motion for discharge. The district 

court’s order is affirmed.

Affirmed.