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12/02/2016 09:10 AM CST




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                                  Nebraska Supreme Court A dvance Sheets
                                          295 Nebraska R eports
                                                STATE v. KOLBJORNSEN
                                                  Cite as 295 Neb. 231




                                         State of Nebraska, appellee, v.
                                        Frantz G. Kolbjornsen, appellant.
                                                     ___ N.W.2d ___

                                          Filed December 2, 2016.   No. S-16-148.

                1.	 Judgments: Speedy Trial: Appeal and Error. Ordinarily, 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.	 Judgments: Statutes: Appeal and Error. To the extent an appeal calls
                     for statutory interpretation or presents questions of law, an appellate
                     court must reach an independent conclusion irrespective of the determi-
                     nation made by the court below.
                3.	 Speedy Trial: Prisoners. The statutory procedure under Neb. Rev. Stat.
                     § 29-3805 (Reissue 2016), rather than the procedure under Neb. Rev.
                     Stat. § 29-1207 (Reissue 2016), applies to instate prisoners.
                4.	 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.
                5.	 Good Cause: Words and Phrases. Good cause means a substantial
                     reason; one that affords a legal excuse.
                 6.	 ____: ____. Good cause is something that must be substantial, but also
                     a factual question dealt with on a case-by-case basis.

                Appeal from the District Court for Hall County: William T.
               Wright, Judge. Affirmed.

                 Gerard A. Piccolo, Hall County Public Defender, for
               appellant.

                 Douglas J. Peterson, Attorney General, and Kimberly A.
               Klein for appellee.
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                Nebraska Supreme Court A dvance Sheets
                        295 Nebraska R eports
                            STATE v. KOLBJORNSEN
                              Cite as 295 Neb. 231

   Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
K elch, and Funke, JJ.

      Cassel, J.
                       INTRODUCTION
   Frantz G. Kolbjornsen appeals from a criminal case order
denying relief under two different “speedy trial” statutes.1
Because Kolbjornsen was a Nebraska prisoner at all relevant
times, only one statute applied—the one governing intrastate
detainers.2 We conclude that the district court’s determination
that courtroom unavailability established good cause to extend
the time in which to try Kolbjornsen was not clearly erroneous,
and we affirm.

                        BACKGROUND
   In September 2014, Kolbjornsen began serving sentences
imposed for criminal offenses committed in Hamilton County,
Nebraska. Approximately 2 months later, the State filed a
complaint in the county court for Hall County, alleging that
Kolbjornsen committed assault on a peace officer in the third
degree. On December 16, the State received a letter from the
Department of Correctional Services stating that Kolbjornsen
was requesting a quick and speedy disposition of two untried
charges, one of which was the charge for assault on a peace
officer in the third degree. The State later amended the charge
to assault by a confined person, and Kolbjornsen was bound
over to the district court after a preliminary hearing. On March
3, 2015, the State filed an information charging Kolbjornsen
with assault by a confined person.
   In May 2015, the State filed a motion requesting the district
court to advance Kolbjornsen’s trial “for speedy trial require-
ments” and requesting a hearing date as soon as possible.
During a hearing on the motion, the court stated that it would

 1	
      Neb. Rev. Stat. §§ 29-1207 and 29-3805 (Reissue 2016).
 2	
      § 29-3805.
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           Nebraska Supreme Court A dvance Sheets
                   295 Nebraska R eports
                      STATE v. KOLBJORNSEN
                        Cite as 295 Neb. 231

advance the trial from August until May 27 or 28. On May 22,
Kolbjornsen moved for continuance, stating that the defense
was not ready to proceed to trial. The district court thereafter
granted the motion and continued the matter until August 26.
   On August 12, 2015, the district court held a final plea
hearing. During the hearing, Kolbjornsen’s counsel stated that
Kolbjornsen did not “have a problem” if his trial was not held
in August. The court explained that various jury courtrooms
were going to be unavailable during renovations to the build-
ing, including the courtroom in which Kolbjornsen’s trial was
to be held. After the bailiff said “no jury trials” for October
and November, Kolbjornsen’s counsel asked, “Could we shoot
for October . . . and see if something breaks[?]” The court
responded, “Well, basically, what we have been told is nothing
is available for October.” The court continued the trial until
December 16.
   On December 7, 2015, Kolbjornsen filed two motions. One
motion requested absolute discharge under § 29-1207. The
other motion sought to dismiss the case for lack of jurisdiction
under § 29-3805.
   During a hearing on the motions before Judge William T.
Wright, the district court received exhibits and heard testi-
mony of witnesses. Evidence established that the district court
for Hall County had two district courtrooms large enough
to accommodate jury trials and that those courtrooms were
shared by three district judges. In 2015, Hall County began
repairs within the courthouse and repairs to the courtrooms
were scheduled to begin in October. The courtrooms were
unavailable while being repaired. Since October, only one jury
courtroom was available for all district court cases. Each of the
three district judges was assigned specific dates to conduct jury
trials during October through December. The evidence showed
that Judge Wright conducted a criminal jury trial for a different
individual on August 26 and 27. Judge Wright’s bailiff stated
in an affidavit that the judge was scheduled to preside over 26
criminal jury trials for June through August in Hall County
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                Nebraska Supreme Court A dvance Sheets
                        295 Nebraska R eports
                            STATE v. KOLBJORNSEN
                              Cite as 295 Neb. 231

and 27 such trials for September through December. The
bailiff stated that Judge Wright also was presiding over addi-
tional cases in Buffalo County during those times, in addition
to civil cases in both Hall County and Buffalo County. The
bailiff stated that “all hearings and trials were calendared and
docketed at the earliest . . . date available to the court for such
purpose” and that “there weren’t any earlier available dates to
set this case for hearings or trial.”
   The district court denied Kolbjornsen’s motions. The court
found that renovations caused one of the two district court
courtrooms to be unusable for jury trials for substantial peri-
ods. The order stated that repairs to courtrooms in which jury
trials could be held were scheduled to begin in October 2015,
that the repairs had not been completed at the time of the
order, and that the courtrooms were not available for use while
being repaired. The order further stated that from October 25
to the end of 2015, only one jury courtroom was available for
all district court cases due to repair work. The court found that
all three of the district judges were using one jury courtroom
during the months of October, November, and December, and
that each district judge was assigned specific dates to con-
duct jury trials within that timeframe. As to Kolbjornsen’s
motion under § 29-1207, the court determined that the period
from August 26 to December 16 should be excluded under
§ 29-1207(4)(b) and (f). With regard to Kolbjornsen’s motion
under § 29-3805, the court found that the reasons it gave on
August 12 to continue the matter to December 16 established
“good cause.” The court found that for good cause, the period
of time between May 22 and August 12 and between August
12 and December 16 should be excluded. The court concluded
that neither time limit required dismissal at the time that
Kolbjornsen filed his motions.
   Kolbjornsen filed a timely appeal, which we moved to
our docket.3

 3	
      See Neb. Rev. Stat. § 24-1106(3) (Reissue 2016).
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                Nebraska Supreme Court A dvance Sheets
                        295 Nebraska R eports
                            STATE v. KOLBJORNSEN
                              Cite as 295 Neb. 231

                ASSIGNMENT OF ERROR
   Kolbjornsen assigns, consolidated, that the district court
erred in overruling his motions pursuant to §§ 29-1207
and 29-3805.

                  STANDARD OF REVIEW
   [1] Ordinarily, 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] To the extent an appeal calls for statutory interpretation
or presents questions of law, an appellate court must reach
an independent conclusion irrespective of the determination
made by the court below.5

                          ANALYSIS
                   § 29-1207 Does Not A pply
   [3] Kolbjornsen sought relief under the speedy trial provi-
sions of two different legislative acts, but only one applies to
his case. Both §§ 29-1207 and 29-3805 address speedy trial
rights. But we have previously held that the latter statutory
procedure, rather than the former, applies to instate prisoners.6
Because Kolbjornsen was a “committed offender”7 in the cus-
tody of the Department of Correctional Services at the time
that he filed his motions, his statutory speedy trial rights were
governed by Neb. Rev. Stat. §§ 29-3801 to 29-3809 (Reissue
2016). The procedure under § 29-1207 does not apply.
   [4] Kolbjornsen suggests that because the State “never
asserted [the statute’s] inapplicability” and the district court

 4	
      State v. Tucker, 259 Neb. 225, 609 N.W.2d 306 (2000).
 5	
      Id.
 6	
      See, State v. Tucker, supra note 4; State v. Ebert, 235 Neb. 330, 455
      N.W.2d 165 (1990); State v. Soule, 221 Neb. 619, 379 N.W.2d 762 (1986).
      See, also, State v. Caldwell, 10 Neb. App. 803, 639 N.W.2d 663 (2002).
 7	
      See Neb. Rev. Stat. § 83-170(3) (Supp. 2015).
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                Nebraska Supreme Court A dvance Sheets
                        295 Nebraska R eports
                            STATE v. KOLBJORNSEN
                              Cite as 295 Neb. 231

“did not decide the issue,” we “cannot review a decision not
made by the lower court.”8 He relies on our oft-repeated state-
ment that an appellate court will not consider an issue on
appeal that was not presented to or passed upon by the trial
court.9 But the district court did consider the applicability of
§ 29-1207. The question cannot be divided in the artificial
way that Kolbjornsen urges. When the court denied any relief
purportedly based on § 29-1207, it came to the right result
for the wrong reason—albeit without any help from the State
below. A correct result will not be set aside merely because
the lower court applied the wrong reasoning in reaching that
result.10 Kolbjornsen’s assignment of error regarding § 29-1207
lacks merit.

                      Intrastate Detainer
                       General Time Limit
   The intrastate detainer statute generally provides a 180-day
time limit to commence a trial. Section 29-3805 requires that
an untried indictment, information, or complaint be brought
to trial “[w]ithin one hundred eighty days after the prosecu-
tor receives a certificate from the director pursuant to section
29-3803 or 29-3804 or within such additional time as the court
for good cause shown in open court may grant . . . .”
   The consequence of not bringing a charge to trial within that
time period is dismissal with prejudice of the untried indict-
ment, information, or complaint.11 Here, the 180-day period
began running on December 16, 2014. Without any extensions,
Kolbjornsen needed to be tried by June 14, 2015.
   But, as § 29-3805 expressly states, the 180-day period may
be extended “for good cause shown in open court.” And the
State relies on an extension based on this language.

 8	
      Reply brief for appellant at 1.
 9	
      See, e.g., State v. Huston, 285 Neb. 11, 824 N.W.2d 724 (2013).
10	
      State v. Filholm, 287 Neb. 763, 848 N.W.2d 571 (2014).
11	
      § 29-3805.
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                Nebraska Supreme Court A dvance Sheets
                        295 Nebraska R eports
                            STATE v. KOLBJORNSEN
                              Cite as 295 Neb. 231

                   Definition of “Good Cause”
   [5,6] We have not defined “good cause” for purposes of
§ 29-3805, but the Nebraska Court of Appeals has. “Good
cause means a substantial reason; one that affords a legal
excuse.”12 It is “something that must be substantial, but also a
factual question dealt with on a case-by-case basis.”13
   We see no reason to depart from this definition, although
it is concededly very general. And in applying the definition,
each case must be determined based upon its particular facts
and circumstances.
   The Nebraska appellate courts have applied the “good
cause” extension of § 29-3805 to continuances obtained under
a variety of circumstances. We have held that a continuance
granted at an instate prisoner’s request in the county court
where a complaint is pending against the prisoner extends the
time within which such a prisoner must be brought to trial
under § 29-3805.14 And the Court of Appeals has determined
that a continuance granted at a prosecutor’s request but with
the implicit consent of the prisoner’s attorney extended the
time limit.15

                        A pplication of
                    Statutory Extension
   There is no dispute that Kolbjornsen’s request for a con-
tinuance extended the time in which to try him. On May 22,
2015, Kolbjornsen moved for continuance, and the court con-
tinued the matter until August 26. Kolbjornsen agrees that 96
days should be added to the 180-day period. This extended
the deadline to September 18. Thus, Kolbjornsen’s argument
depends upon the events of the August plea hearing.

12	
      State v. Rouse, 13 Neb. App. 90, 94, 688 N.W.2d 889, 892 (2004).
13	
      State v. Caldwell, supra note 6, 10 Neb. App. at 808, 639 N.W.2d at 667.
14	
      See State v. Soule, supra note 6.
15	
      See State v. Rouse, supra note 12.
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                 Nebraska Supreme Court A dvance Sheets
                         295 Nebraska R eports
                              STATE v. KOLBJORNSEN
                                Cite as 295 Neb. 231

   Kolbjornsen’s argument that he had no notice that
“[§] 29-3805 matters”16 were being discussed at the August 12,
2015, hearing is perhaps somewhat disingenuous. Although
the hearing was a final plea hearing, Kolbjornsen’s counsel
stated at the outset:
      Well, Your Honor, there is no plea agreement. I have
      discussed with . . . Kolbjornsen the Court’s docket,
      which I spoke to myself just a few minutes ago, Your
      Honor, and I think you are well aware of your docket. .
      . . Kolbjornsen doesn’t have a problem if we don’t try
      it this month, Your Honor, but I’m eagerly awaiting
      some sort of idea when it would be tried, Your Honor.
      And that would be the point. I mean he doesn’t want to
      wait too long, but he doesn’t mind continuing it from
      this month.
The court responded, “Well, the problem is essentially one
of facilities, as well as other matters demanding the Court’s
time for trial, particularly jury trial.” The court proceeded to
further explain the upcoming unavailability of courtrooms.
After explaining that the only option for a jury trial was in
December, the court stated that “Kolbjornsen is free, if he
chooses, to seek some kind of motion for dismissal on the
basis of speedy trial, but quite frankly under the circumstances,
I think the Court and the State have a legitimate excuse.”
Kolbjornsen’s counsel declined to waive a speedy trial and
stated, “I agree with you, if I want to, I’ll file a motion and
I guess the Nebraska Supreme Court can take it up then.”
Clearly, Kolbjornsen’s speedy trial rights were a substantial
focus of the August 12 hearing.
   And in due course, Kolbjornsen filed his motions (one
based on § 29-1207 and the other based on § 29-3805). His
motions relied solely on statutory grounds and did not assert
any constitutional issue. As we have recited, the district court
conducted an evidentiary hearing.

16	
      Brief for appellant at 12.
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                Nebraska Supreme Court A dvance Sheets
                        295 Nebraska R eports
                            STATE v. KOLBJORNSEN
                              Cite as 295 Neb. 231

   The evidence at this hearing established that there was no
time or place to hold a jury trial for Kolbjornsen in August
2015. Kolbjornsen argues that the State failed to prove a
courtroom was unavailable on and around August 26. But
the evidence shows that the judge conducted a criminal jury
trial on August 26 and 27 for a different defendant, against
whom the State had filed an information 1 month before it
filed the information against Kolbjornsen. Thus, the judge
handling Kolbjornsen’s case and a jury-capable courtroom
were unavailable on those dates. The judge’s bailiff stated
that on August 12, she advised the court that another case was
set for a jury trial for the August jury term, that “there was
no other . . . court space available to complete a jury trial on
that date[,] and that the next available jury trial date would be
December 16, 2015.” The State established courtroom unavail-
ability around August 26.
   The district court’s determination that courtroom unavail-
ability constituted good cause to continue the trial was not
clearly erroneous. According to the evidence, only one jury
courtroom was available for all district court cases since
October 2015 and the three district judges were assigned
specific dates to conduct jury trials during October through
December. We agree with the district court that under the
circumstances, good cause existed to continue the trial from
August 26 to December 16, thereby extending the time to try
Kolbjornsen for an additional 112 days.
   Nonetheless, we caution trial courts to tread carefully in
granting continuances based on courtroom unavailability. The
counties play an important role in providing “suitable . . .
accommodation.”17 Here, the State produced enough evidence
to satisfy its initial burden of production. But evidence of
other alternatives might easily have tipped the balance against
a continuance.

17	
      See Neb. Rev. Stat. § 23-120(1) (Reissue 2012).
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           Nebraska Supreme Court A dvance Sheets
                   295 Nebraska R eports
                      STATE v. KOLBJORNSEN
                        Cite as 295 Neb. 231

   Because good cause was shown to extend the June 14, 2015,
trial date by a total of 208 days, the State had until Friday,
January 8, 2016, to bring Kolbjornsen to trial. Accordingly,
the time to try Kolbjornsen had not expired at the time of
his December 7, 2015, motion, and the district court properly
overruled Kolbjornsen’s motion.

                        CONCLUSION
   We conclude that the speedy trial provisions of § 29-1207
had no application to Kolbjornsen, because he was a Nebraska
prisoner. Rather, the time was governed by § 29-3805. Under
the circumstances, the district court’s determination that court-
room unavailability established good cause to extend the
time in which to try Kolbjornsen was not clearly erroneous.
Because the time to try Kolbjornsen had not expired when he
filed his motion to dismiss the case, the district court correctly
overruled the motion.
                                                      A ffirmed.
