State v. Billingsley , 309 Neb. 616 ( 2021 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
07/09/2021 08:09 AM CDT
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Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
STATE v. BILLINGSLEY
Cite as 309 Neb. 616State 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 pur-
poses, 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
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STATE v. BILLINGSLEY
Cite as 309 Neb. 616is 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 infor-
mation 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. 616a 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 sched-
uled 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 per-
manency 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 selec-
tion 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. 616In 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 for-
ward 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 abate-
ment, 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 sec-
ond period of 84 days, “from April 3 [sic] [through] June 26,
2020,” should be excluded. The court stated that there was suf-
ficient 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 fac-
tual 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. 616ANALYSIS
[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 infor-
mation 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 pre-
trial 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 pur-
poses, “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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STATE v. BILLINGSLEY
Cite as 309 Neb. 616by 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 exclud-
able 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 con-
ference on June 1, at which time the court set trial for June 30.
The court recorded in its journal entries that “[t]he schedul-
ing 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 pan-
demic. 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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STATE v. BILLINGSLEY
Cite as 309 Neb. 616Billingsley contends, however, that the State failed to meet
its burden that the period from June 1 to 26, 2020, is an exclud-
able 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 exclud-
able 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 analy-
sis 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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Cite as 309 Neb. 616attorney because of the unavailability of evidence material to
the State’s case when the prosecutor has exercised due dili-
gence 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 con-
tinuance 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 estab-
lished when the court granted the prosecutor’s motion to con-
tinue 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 reason-
able grounds to believe that such witness testimony would be
available at a later date. We agree that the prosecutor’s affi-
davit 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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STATE v. BILLINGSLEY
Cite as 309 Neb. 616that legal proceedings had been scheduled to obtain the nec-
essary 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 prosecu-
tor’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 diag-
nosis only 5 days before trial and was in the position of finding
substitute counsel for trial, as well as for the out-of-state wit-
ness 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).