State v. Billingsley, 309 Neb. 616

Background:

On Sept. 3, 2019 the State filed an information charging William Billingsley III with first‑degree assault, third‑degree assault, and disturbing the peace; Billingsley had filed a plea in abatement on Aug. 28, 2019.
The district court denied the plea in abatement on Dec. 5, 2019 and set arraignment for Jan. 6, 2020; multiple pretrial/scheduling conferences were held by phone because of the COVID‑19 pandemic.
The court set trial for June 30, 2020. On June 25 the prosecutor moved to continue, supported by an affidavit that (1) three treating physicians were material witnesses and two would not appear without court orders, and (2) the prosecutor tested positive for COVID‑19 on June 25 and had to isolate.
The court granted the State’s continuance over Billingsley’s objection and indicated any delay from the continuance would be taxed against the State for speedy‑trial purposes; later the court set jury selection for Aug. 11 and trial for Aug. 24, 2020.
Billingsley filed a motion for absolute discharge on Aug. 11, 2020. The district court calculated the speedy‑trial deadline by excluding the plea‑in‑abatement period and certain COVID‑related delay days and concluded the motion was premature; the Nebraska Supreme Court affirmed.

Issues:

Issue	Plaintiff's Argument (State)	Defendant's Argument (Billingsley)	Held
Whether Billingsley was entitled to absolute discharge under Neb. Rev. Stat. § 29‑1207 for failure to be tried within six months	The State contended excluded periods (plea in abatement; COVID‑related scheduling delays; continuance granted at prosecutor's request) extended the trial deadline past Aug. 11, 2020	Billingsley argued the State failed to prove the June 1–26, 2020 period (COVID delays) was excludable and thus the six‑month period expired by July 30, 2020	Court held the State proved sufficient excluded time (including a 46‑day continuance period after June 26), so Billingsley’s Aug. 11 motion was premature; discharge denied
Whether the plea in abatement period is excludable from the six‑month computation	State: plea in abatement exclusion under § 29‑1207(4)(a) applies	Billingsley: conceded the plea in abatement exclusion calculation	Held: 93 days excluded for plea in abatement (Sept. 4–Dec. 5, 2019)
Whether April–June 2020 COVID‑related delays (court scheduling logistics) were excludable for good cause under § 29‑1207(4)(f)	State: COVID restrictions justified excluding scheduling delay days	Billingsley: challenged sufficiency of evidentiary support for the court’s good‑cause finding	Held: The opinion assumed arguendo that June 1–26 need not be excluded and resolved the appeal on other grounds (see next issue)
Whether the continuance granted June 26, 2020 at the prosecutor’s request (prosecutor ill and witnesses unavailable) produced an excludable period under § 29‑1207(4)(c)	State: prosecutor’s affidavit showed due diligence to obtain material medical witnesses and exceptional circumstances justified additional time; continuance period is excludable	Billingsley: disputed sufficiency of evidence to support exclusion	Held: The prosecutor’s affidavit satisfied § 29‑1207(4)(c)(i) and (ii); 46 days (June 26–Aug. 11) were excludable, making the deadline Sept. 14, 2020 and denying discharge

Key Cases Cited

State v. Jennings, 308 Neb. 835, 957 N.W.2d 143 (factual speedy‑trial dismissal review standard)
State v. Chapman, 307 Neb. 443, 949 N.W.2d 490 (speedy‑trial computation method)
State v. Lovvorn, 303 Neb. 844, 932 N.W.2d 64 (effect of excluded periods on six‑month deadline)
State v. Williams, 277 Neb. 133, 761 N.W.2d 514 (State bears burden to prove excluded periods)
State v. Baird, 259 Neb. 245, 609 N.W.2d 349 (evidentiary basis for continuance findings)
State v. Rhoads, 11 Neb. App. 731, 660 N.W.2d 181 (continuance/evidence issues)
State v. Turner, 252 Neb. 620, 564 N.W.2d 231 (motion for continuance committed to court’s discretion)
State v. Robertson, 294 Neb. 29, 881 N.W.2d 864 (§ 29‑1207(4)(c)(ii) exceptional circumstances analysis)
State v. Roundtree, 11 Neb. App. 628, 658 N.W.2d 308 (materiality of medical witness testimony)
State v. Kolbjornsen, 295 Neb. 231, 888 N.W.2d 153 (correct result will not be reversed for wrong reasoning)