State v. Billingsley, 309 Neb. 616

Background

Information charging Billingsley with first-degree assault, third-degree assault, and disturbing the peace filed Sept. 3, 2019; Billingsley had filed a plea in abatement Aug. 28, 2019.
Plea in abatement denied Dec. 5, 2019; district court and parties agree this produced a 93-day exclusion (Sept. 4–Dec. 5).
COVID-19 disrupted in-person proceedings; court held telephonic pretrial conferences and initially set trial for June 30, 2020.
On June 25, 2020 the prosecutor filed a continuance motion (with affidavit) after testing positive for COVID-19 and seeking to secure three medical witnesses; court granted the continuance on June 26.
Billingsley moved for absolute discharge on speedy-trial grounds Aug. 11, 2020; the district court denied the motion and calculated excluded days to extend the trial deadline into late August/September 2020.
Nebraska Supreme Court affirmed, holding that even if some COVID-related days were not excludable, the June 26–Aug. 11 continuance (46 days) was excludable under § 29-1207(4)(c), making Billingsley’s August 11 motion premature.

Issues

Issue	Plaintiff's Argument (Billingsley)	Defendant's Argument (State)	Held
Whether Billingsley was entitled to absolute discharge for violation of statutory speedy-trial deadline	The State failed to bring him to trial within six months (deadline July 30 if June 1–26 not excluded); his Aug. 11 discharge motion was timely	Excluded periods (plea in abatement and continuances) extended the deadline; continuance June 26–Aug.11 is excludable, so motion was premature	Affirmed denial of discharge; State met burden to show 195 excludable days and deadline extended to Sept. 14, 2020
Whether the period June 1–26, 2020 is excludable for good cause under § 29-1207(4)(f) because of COVID-19 restrictions	Court lacked evidentiary basis; judicial statements alone insufficient to establish good cause	Court need not resolve if June 1–26 excluded because other exclusions made discharge premature	Court assumed arguendo June 1–26 nonexcludable and resolved appeal on a different exclusion (June 26–Aug.11)
Whether the continuance granted June 26, 2020 is excludable under § 29-1207(4)(c) (unavailability of material evidence / exceptional circumstances)	The State did not present sufficient evidence that witnesses were unavailable or that due diligence/exceptional circumstances existed	Prosecutor’s affidavit showed unavailability of material medical witnesses, due diligence to obtain testimony, COVID diagnosis preventing prosecutor’s attendance, and reasonable expectation witnesses could be secured later	Continuance exclusion under § 29-1207(4)(c) applies; the court acted within its discretion in granting continuance and excluding the resulting time

Key Cases Cited

State v. Jennings, 308 Neb. 835, 957 N.W.2d 143 (speedy-trial dismissal determinations are factual and reviewed for clear error)
State v. Chapman, 307 Neb. 443, 949 N.W.2d 490 (explaining speedy-trial time computation method)
State v. Lovvorn, 303 Neb. 844, 932 N.W.2d 64 (discussing computation and exclusions under § 29-1207)
State v. Williams, 277 Neb. 133, 761 N.W.2d 514 (rules on speedy-trial entitlement when time not timely extended)
State v. Baird, 259 Neb. 245, 609 N.W.2d 349 (discussing evidentiary showing required for exclusions)
State v. Rhoads, 11 Neb. App. 731, 660 N.W.2d 181 (treating court statements versus evidentiary support for exclusions)
State v. Roundtree, 11 Neb. App. 628, 658 N.W.2d 308 (medical witness testimony as material evidence)
State v. Turner, 252 Neb. 620, 564 N.W.2d 231 (continuance and appellate review of continuance rulings)
State v. Robertson, 294 Neb. 29, 881 N.W.2d 864 (exclusions for exceptional circumstances)
State v. Kolbjornsen, 295 Neb. 231, 888 N.W.2d 153 (correct-result doctrine: correct outcome will stand despite wrong reasoning)