State v. Beitel , 296 Neb. 781 ( 2017 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
07/07/2017 09:10 AM CDT
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Nebraska Supreme Court A dvance Sheets
296 Nebraska R eports
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 ques-
tion 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 deter-
mine 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 lan-
guage of Neb. Rev. Stat. § 29-1207(4)(e) (Reissue 2016) and its legis-
lative 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
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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 peri-
ods 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 codefend­
ant’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 calcu-
lating the defendant’s speedy trial time absent the codefendant exclu-
sion 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 case-
by-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,
K elch, and Funke, JJ.
Stacy, J.
Roger Beitel appeals from an order denying his motion
for absolute discharge. He contends the district court mis-
applied 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 materi-
als 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 repre-
sented 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 advise-
ment. 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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STATE v. BEITEL
Cite as 296 Neb. 781
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 grant-
ing 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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STATE v. BEITEL
Cite as 296 Neb. 781
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 pre-
serve 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 indepen-
dent 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 provi-
sions of § 29-1207(4)(e), we are guided by familiar prin-
ciples. 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. Ct. 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 adop-
tion 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 lan-
guage 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 defend­
ant being joined for trial with other defendants as to
whom the running of the time limitations has been inter-
rupted. 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 promul-
gated by the ABA Standards.14 The federal act contains no
“good cause” requirement and instead provides that “[a] rea-
sonable 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 grant-
ing 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 satis-
fied 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 sever-
ance 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 bur-
den 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 fol-
lowing 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 over-
rule Roger’s motion for discharge. The second possible out-
come 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 sen-
tence 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 defend­
ant’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 assign-
ment 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 pre-
trial 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 find-
ing 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 fail-
ure 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 consoli-
dated. 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.
- 795 -
Nebraska Supreme Court A dvance Sheets
296 Nebraska R eports
STATE v. BEITEL
Cite as 296 Neb. 781
support of the original joinder, the exhibits offered by the par-
ties 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 evi-
dence 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.
A ffirmed.