State v. Ostermeier

- 322 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
STATE v. OSTERMEIER
Cite as 31 Neb. App. 322
State of Nebraska, appellee, v.
Jayston R. Ostermeier, appellant.
___ N.W.2d ___
Filed September 13, 2022. 	No. A-21-834.
1. Judgments: Speedy Trial: Appeal and Error. A trial court’s deter-
mination 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: Appeal and Error. Under a clearly erroneous standard of
review, an appellate court does not reweigh the evidence but considers
the judgment in a light most favorable to the successful party, resolving
evidentiary conflicts in favor of the successful party, who is entitled to
every reasonable inference deducible from the evidence.
3. Speedy Trial. 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 defend-
ant can be tried.
4. Speedy Trial: Good Cause: Words and Phrases. “Good cause,” for
purposes of Neb. Rev. Stat. § 29-1207(4)(f) (Reissue 2016), means a
substantial reason and one that affords a legal excuse.
5. Good Cause. Good cause is a factual question dealt with on a case-by-
case basis. A district court’s good cause finding must be supported by
the evidence in the record. The court must make specific findings as to
the good cause which resulted in the delay.
6. Motions for Continuance. Evidence of good cause can be properly
presented at the hearing on the motion for absolute discharge and need
not be articulated at the time of the court’s sua sponte order delay-
ing trial.
7. Speedy Trial. The only timing requirement implicit in Neb. Rev. Stat.
§ 29-1207(4)(f) (Reissue 2016) is that the substantial reason affording
a legal excuse objectively existed at the time of the delay.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/14/2026 07:55 AM CDT

- 323 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
STATE v. OSTERMEIER
Cite as 31 Neb. App. 322
8. Speedy Trial: Good Cause. As a general matter, the COVID-19 pan-
demic and the public health interests attendant thereto may provide good
cause for delays.
9. Appeal and Error. An appellate court is not obligated to engage in an
analysis that is not necessary to adjudicate the case and controversy
before it.
Appeal from the District Court for Butler County: James C.
Stecker, Judge. Affirmed.
Neal J. Valorz, of Sipple, Hansen, Emerson, Schumacher,
Klutman & Valorz, for appellant.
Douglas J. Peterson, Attorney General, and Kimberly A.
Klein for appellee.
Pirtle, Chief Judge, and Bishop and Arterburn, Judges.
Arterburn, Judge.
INTRODUCTION
Jayston R. Ostermeier appeals from an order of the district
court for Butler County which denied his motion for absolute
discharge. Ostermeier argues that the district court erred when
it found that good cause existed to exclude certain periods
of time due to the COVID-19 pandemic and in finding that
his prior counsel consented to a period of delay. We find that
Ostermeier’s statutory speedy trial rights were not violated.
Therefore, we affirm.
BACKGROUND
On August 14, 2020, Ostermeier was charged by informa-
tion with one count of first degree sexual assault, a Class II
felony, and one count of contributing to the delinquency of a
minor, a Class I misdemeanor. On October 6, Ostermeier was
arraigned and pled not guilty. During the course of the hearing,
the district court ordered that the case be set for jury trial to
occur in the January 11, 2021, jury term. We note that during
the course of the arraignment, the court told Ostermeier that

- 324 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
STATE v. OSTERMEIER
Cite as 31 Neb. App. 322
the case could be set for trial in either the November 2020
term or the January 2021 term. Ostermeier’s counsel requested
that trial be set in January, noting that the later setting would
provide adequate time to allow him to conduct discovery and
negotiate a plea agreement.
No written journal entry or order was produced from the
October 6, 2020, hearing which memorialized the trial set-
ting. The district court’s bailiff, Tracy Svoboda, who normally
inputs trial dates into journal entries, was not present at the
hearing due to an illness. According to her affidavit received at
the hearing on the motion to discharge, had she been present
for the hearing, a journal entry would have been created show-
ing the trial date which was set.
On November 24, 2020, the district court entered an amended
administrative 	order 	(the 	November 	2020 	Administrative
Order) which indicated that the “risk dial” in all three health
districts of Saunders, Butler, and Colfax Counties had moved
from “‘High’” to “‘Severe’” as of November 19. As a result,
the court found that changes in procedure and scheduling were
necessary to protect the public. The court determined that good
cause existed to continue all criminal jury trials that were
scheduled during December 2020 to a date after January 8,
2021, due to the heightened health risk to jurors, court person-
nel, litigants, and interpreters.
On December 22, 2020, a general order was entered show-
ing all of the criminal cases from Butler, Saunders, and Colfax
Counties that were set for trial during the January 11, 2021,
jury term. Five cases were listed and placed into an order of
priority. This case was not listed in the general order. In her
affidavit, Svoboda explained that had a journal entry been
entered from the October 6, 2020, hearing memorializing the
trial setting, the case would have been included in the gen-
eral order.
On December 23, 2020, the district court issued orders con-
tinuing all of the jury trials that were scheduled to commence
during the January 11, 2021, jury term for good cause. The

- 325 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
STATE v. OSTERMEIER
Cite as 31 Neb. App. 322
district court found that the current “risk dial” for COVID-19
remained at “‘high’” and was nearly reaching “‘severe.’” The
district court found that the next available date for the court
to conduct jury trials was the trial term commencing March
15. The December 2020 order was filed in all five cases for
defendants who had jury trials scheduled for the January 11,
2021, jury term. However, because Ostermeier’s case was not
included on the list of jury trials scheduled for the January 11
jury term, no order was entered in Ostermeier’s case.
Our 	record 	does 	not 	demonstrate 	how 	Ostermeier 	was
informed that trial would not occur in January 2021. However,
a status hearing was scheduled for January 26. That hearing
was continued pursuant to an order entered by the court on
January 25. The court found that the status hearing should be
continued to February 2 due to inclement weather.
At 	the 	status 	hearing 	on 	February 	2, 	2021, 	a 	discus-
sion occurred between the court, the county attorney, and
Ostermeier’s counsel about when trial should be rescheduled.
Ostermeier’s counsel requested that the case be set for trial
with additional status hearings scheduled as needed. Defense
counsel indicated that he did not know if trials were currently
occurring due to the COVID-19 pandemic. The following
exchange occurred:
THE COURT: Well, we’ll probably put it on the May
trial term and, hopefully, by then they will be. So I’m
looking at May 10th through the 14th is the jury term.
We’ll place it on that jury term. Do you want a status
hearing in late March?
[Ostermeier’s counsel:] That would be fine. That would
be fine, Your Honor.
THE COURT: Okay. March —
[Ostermeier’s counsel:] And I’m available May 10th.
There was no further discussion on the record about why the
trial needed to be held in May 2021.
On April 15, 2021, Ostermeier’s counsel filed a “Motion
for Discharge,” alleging that the last day to bring Ostermeier

- 326 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
STATE v. OSTERMEIER
Cite as 31 Neb. App. 322
to trial was February 22, 2021. In his motion, he requested an
order of absolute discharge.
On June 22, 2021, the initial trial judge recused herself from
the case. The judge found that there was a potential conflict
because her bailiff had been identified as a witness. The case
was reassigned to a different district court judge.
On July 8, 2021, Ostermeier filed an amended motion for
discharge, which is the operative motion for purposes of this
appeal. In his amended motion for discharge, he asserted that
the last day to bring him to trial was February 15, 2021, and he
prayed for an order of absolute discharge.
A hearing on the amended motion for discharge was held on
July 15, 2021. At the hearing, the State offered into evidence
multiple exhibits. Svoboda authored two affidavits with sev-
eral attachments which were received into evidence. As stated
earlier, Svoboda averred that because she was absent due to
an illness on October 6, 2020, Ostermeier’s trial date was not
memorialized in a journal entry. In addition, his case was not
included in the December 22 order which listed the five cases
that were set for criminal jury trials during the January 11,
2021, jury term. She explained that because his case was not
included in the list of cases, the December 23, 2020, order of
continuance which was entered in the five other cases was not
entered in his case. Copies of the December 23 orders were
received in support of Svoboda’s affidavit. Svoboda further
stated that neither the county attorney, defense counsel, nor the
clerk of the district court inquired of her regarding the January
11, 2021, trial setting at any time prior to that date.
Svoboda further averred that the cases that were initially
scheduled for the January 11, 2021, jury term were contin-
ued until the March 15 jury term. On February 8, a general
order was issued by the court that showed 17 criminal jury
trials scheduled for the March jury term. On February 11, an
“Updated Jury Progression Order” was issued listing 10 cases
as remaining for the March jury term. Consistent with the set-
ting made at the February 2 hearing, neither of these orders

- 327 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
STATE v. OSTERMEIER
Cite as 31 Neb. App. 322
listed the present case. On April 13, a general order was issued
listing the cases scheduled for the jury term commencing May
10. That order included the present case among the 12 cases
set. Svoboda averred that two cases set for the March jury term
had higher priority than the remaining cases. The remaining
cases that were not otherwise resolved were continued to the
May jury term. The court also received a supplemental affida-
vit from Svoboda. In that affidavit, the caseload presided over
by the original trial judge is detailed. The affidavit reveals that
680 cases were opened in the three counties in which the trial
court regularly presides during 2020 and that 310 new cases
were opened by May 31. She also noted that the trial court had
received assignments of cases in four additional counties dur-
ing that period. Svoboda then stated that during 2020 and 2021,
the COVID-19 pandemic delayed the progression of cases.
She noted that the docket moved forward only to the extent
allowable under “CDC guidelines,” the result being significant
disruption and congestion of the docket and a large backlog of
cases waiting for disposition.
Ostermeier offered, and the court received, a publication by
the Nebraska Supreme Court and the Pandemic Bench Book
Task Force entitled the “Nebraska Pandemic Bench Book.”
The court also received Ostermeier’s offer of administrative
orders from the Supreme Court issued in March and April
2020. Both orders acknowledge the ongoing health emergency
and provide guidance as to who should or should not appear
for hearings. Both orders find that only the Chief Justice of
the Nebraska Supreme Court can declare a nonjudicial day and
that the courts should remain open while following emergency
preparedness guidelines.
During the hearing, Ostermeier called the clerk of the Butler
County District Court to testify. She identified two cases that
had been set for jury trial before other judges in February
2021. However, according to her testimony, neither case was
tried in February and, in fact, one was tried in May. Orders
filed in both cases during February were also offered and

- 328 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
STATE v. OSTERMEIER
Cite as 31 Neb. App. 322
received. In both cases, the defendants moved to continue trial
to a later date.
The district court denied Ostermeier’s amended motion for
discharge. The district court determined that pursuant to the
November 2020 Administrative Order, there was good cause
to continue all jury trials to a date after January 8, 2021. The
December 23, 2020, order was filed for all other criminal jury
trials that were scheduled for the January 11, 2021, jury term.
However, the district court acknowledged that no order was
entered in the present case. The district court also found that
Ostermeier’s counsel’s statements at the February 2 hearing
that a May 10 trial would be “fine” and that he was “available
May 10th” constituted consent of Ostermeier or his counsel for
an additional delay.
The district court explained that the information was filed on
August 14, 2020. As such, without any excludable periods, the
last day to bring Ostermeier to trial would have been February
14, 2021. The district court found that the time period from
August 14 to December 23, 2020, ran against the State. The
time periods from December 23, 2020, to January 11, 2021,
and from January 11 to February 2, 2021, were excludable
from the speedy trial calculation for good cause due to the pan-
demic. Similarly, the district court found that the time period
from February 2 to May 10, 2021, was excludable not only for
good cause due to the pandemic, but also due to Ostermeier’s
consent to have the trial delayed.
Ostermeier now appeals to this court.
ASSIGNMENT OF ERROR
On appeal, Ostermeier’s sole assignment of error is that
the district court erred in overruling his amended motion for
discharge.
STANDARD OF REVIEW
[1,2] 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

- 329 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
STATE v. OSTERMEIER
Cite as 31 Neb. App. 322
erroneous. State v. Hernandez, 309 Neb. 299, 959 N.W.2d
769 (2021). Under a clearly erroneous standard of review, an
appellate court does not reweigh the evidence but considers
the judgment in a light most favorable to the successful party,
resolving evidentiary conflicts in favor of the successful
party, who is entitled to every reasonable inference deducible
from the evidence. Id.
ANALYSIS
Ostermeier argues that contrary to the district court’s find-
ings in denying his motion for absolute discharge, no good
cause existed in his specific case relating to the COVID-19
pandemic and that he neither explicitly nor implicitly con-
sented to any continuance of the trial. He further notes that no
written order was entered setting trial until February 2, 2021,
nor were any orders entered which continued the case due to
the pandemic. As such, he believes that his speedy trial rights
were violated.
Good Cause.
In Nebraska, a criminal defendant’s statutory speedy trial
rights are governed by Neb. Rev. Stat. §§ 29-1207 and 29-1208
(Reissue 2016). Section 29-1207 requires that every person
indicted or informed against for any offense shall be brought to
trial within 6 months and generally provides that the 6-month
period shall commence to run from the date the indictment is
returned or the information filed. See State v. Jennings, 308
Neb. 835, 957 N.W.2d 143 (2021). The primary burden of
bringing an accused person to trial within the time provided by
law is upon the State. State v. Hernandez, supra.
[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 § 29-1207(4) to determine the last day the
defendant can be tried. State v. Hernandez, supra. If a defend-
ant is not brought to trial before the running of the time for
trial as provided for in § 29-1207, as extended by excluded

- 330 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
STATE v. OSTERMEIER
Cite as 31 Neb. App. 322
periods, he or she shall be entitled to his or her absolute dis-
charge from the offense charged. State v. Hernandez, supra.
[4,5] A period 	of 	delay 	resulting 	from 	a 	continuance
granted at the request or with the consent of the defendant
or his or her counsel is excludable. § 29-1207(4)(b). Periods
of delay are excludable if the court finds that they are for
good cause. § 29-1207(4)(f). “Good cause,” for purposes of
§ 29-1207(4)(f), is not defined by statute, but the Supreme
Court has found that good cause means a substantial reason
and one that affords a legal excuse. See State v. Moody, 311
Neb. 143, 970 N.W.2d 770 (2022). Good cause is a factual
question dealt with on a case-by-case basis. Id. A district
court’s good cause finding must be supported by the evidence
in the record. Id. The court must make specific findings as to
the good cause which resulted in the delay. State v. Brown,
310 Neb. 224, 964 N.W.2d 682 (2021). An appellate court will
give deference to such factual findings unless they are clearly
erroneous. Id.
We note that the Supreme Court has stated that docket con-
gestion can be a good cause for delay in speedy trial calcula-
tions. State v. Sommer, 273 Neb. 587, 731 N.W.2d 566 (2007).
And, in general, the COVID-19 pandemic has been found to
constitute good cause for delay. See State v. Brown, supra.
The Supreme Court has recently addressed good cause find-
ings made by trial courts due to the COVID-19 pandemic in
several cases. In State v. Chase, 310 Neb. 160, 964 N.W.2d
254 (2021), Amandah Chase filed a motion for absolute dis-
charge asserting that her statutory and constitutional rights
to a speedy trial were violated. The record indicated that the
case was continued one time on Chase’s motion and three
times by the trial court sua sponte. However, at the time the
trial court on its own decided to continue the case, it made no
findings as to good cause. At the hearing on Chase’s motion
for absolute discharge, the State offered into evidence and
asked the county court to take judicial notice of 11 exhibits
containing administrative orders and other documents of the

- 331 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
STATE v. OSTERMEIER
Cite as 31 Neb. App. 322
Supreme Court and Douglas County relating to the COVID-19
pandemic. Included in this evidence was an affidavit from
the clerk of the district court who averred that due to the
COVID-19 pandemic, he would be unable to notify and
impanel prospective jurors for a jury trial. In addition, there
was an administrative order from the presiding district court
judge, continuing for good cause all jury trials because the
court could not conduct jury trials within the social distancing
guidelines for protection of the public during the pandemic.
Ultimately, the county court found that the continuances were
on the court’s own motions and that the State had proved by
a preponderance of the evidence that Chase’s rights were not
violated because the 96 days attributable to the court’s deci-
sions to delay the case were excludable for good cause due to
the nationwide COVID-19 pandemic.
[6,7] On appeal, the Supreme Court in Chase affirmed the
order of the district court which affirmed the county court’s
findings. The Supreme Court found that the denial of Chase’s
motion for absolute discharge was proper because the State
presented competent evidence that conditions relating to the
COVID-19 pandemic were present at the time of the judicial
delays. The Supreme Court first explained that when a trial
court makes a sua sponte decision to delay trial, the statu-
tory speedy trial rights of the defendant are implicated. Thus,
exclusion of the period attributable to such delay is governed
by a showing on the record of good cause as described by
§ 29-1207(4)(f). State v. Chase, supra. The Supreme Court
found, however, that evidence of good cause can be properly
presented at the hearing on the motion for absolute discharge
and need not be articulated at the time of the court’s sua
sponte order delaying trial. See id. The only timing require-
ment implicit in § 29-1207(4)(f) is that the substantial reason
affording a legal excuse objectively existed at the time of the
delay. State v. Chase, supra. Ultimately, the Supreme Court
found that the State presented sufficient evidence that condi-
tions relating to the COVID-19 pandemic existed at the time

- 332 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
STATE v. OSTERMEIER
Cite as 31 Neb. App. 322
of the delay and that these conditions provided good cause for
continuing the case. Id.
Subsequent to the decision in State v. Chase, supra, the
Supreme Court released its opinion in State v. Brown, 310
Neb. 224, 964 N.W.2d 682 (2021). In Brown, the Supreme
Court affirmed the order of the district court for Lancaster
County which overruled Joshua Brown’s motion for absolute
discharge. At the hearing on Brown’s motion for discharge,
the State presented evidence that included the specific con-
tinuance orders of the district court which contained its own
findings regarding the pandemic, as well as newspaper articles
regarding restrictions imposed by the district court related
to the COVID-19 pandemic. In addition, the trial court took
judicial notice of general orders issued by the Lancaster
County District Court related to the pandemic. Brown pre-
sented evidence of Supreme Court orders entered in April and
June 2020 to the effect that judicial mission essential func-
tions shall be implemented. In its order ruling on Brown’s
motion to discharge, the trial court also took note of various
orders and declarations of public officials and directives of
health agencies.
The Supreme Court in Brown concluded that the trial court’s
finding of good cause for the continuance was not clearly
erroneous. The Supreme Court considered all the evidence
that was presented at the hearing on the motion to discharge
and the facts of which the district court properly took judicial
notice. As a result, the Supreme Court found that circum-
stances caused by the pandemic supported the trial court’s
finding of good cause. However, the Supreme Court cautioned
that this finding was within the context of the COVID-19 pan-
demic and the circumstances and conditions that existed at the
time the continuances were ordered. Therefore, the Supreme
Court in Brown concluded that in the context and under the
circumstances in which the court ordered the continuances in
March and May 2020, the court’s finding that such continu-
ances were for good cause was not clearly erroneous.

- 333 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
STATE v. OSTERMEIER
Cite as 31 Neb. App. 322
[8] In State v. Moody, 311 Neb. 143, 970 N.W.2d 770 (2022),
the Supreme Court acknowledged that State v. Brown, supra,
provided that as a general matter, the COVID-19 pandemic and
the public health interests attendant thereto may provide good
cause for delays. However, the Supreme Court reiterated that
the determination in Brown was based on the specific context
and circumstances in existence at the time it was decided. State
v. Moody, supra. The Supreme Court then addressed whether
good cause existed with respect to delays due to the COVID-19
pandemic between November 2020 and April 2021. Id.
At the hearing on the defendant’s motion for discharge
in Moody, the trial court took judicial notice of the files in
the case and received into evidence an affidavit from the
court’s bailiff, various orders filed by the trial court, and
the orders filed by the presiding judge of the district court.
The record indicated that the trial court’s continuance orders
were prompted by the presiding district court judge’s orders
requiring all judges of the district court to limit the number
of criminal trials and to continue all other trials that required
a jury. Id. In addition, the presiding district court judge’s
orders described the specific context and circumstances that
prompted these delays, noting that there were ongoing social
distancing restrictions and a resurgence of the COVID-19
pandemic which resulted in a backlog of criminal and civil
cases requesting jury trials. Id.
On appeal, the Supreme Court in Moody affirmed the deci-
sion of the district court finding that the delays were excludable
due to good cause. The Supreme Court found that there was
sufficient evidence regarding the context and circumstances
that were in existence at the specific periods that the con-
tinuances were ordered for reasons relating to the COVID-19
pandemic, the related public health concerns and restrictions,
the effect of the pandemic, and related restrictions on the dis-
trict court’s ability to hold jury trials. Id.
With the reasoning of these cases in mind, we now turn to
the present case. Ostermeier was charged by information on

- 334 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
STATE v. OSTERMEIER
Cite as 31 Neb. App. 322
August 14, 2020. Ostermeier was arraigned on October 6, and
a jury trial was ordered to commence during the January 11,
2021, jury term. In November 2020, the district court recog-
nized the ongoing health emergency that existed and, by way
of its November 2020 Administrative Order, continued all jury
trials scheduled in the December 2020 jury term to January
2021 due to the resurgence of the COVID-19 pandemic. The
December 23, 2020, orders continued jury trials for the January
11, 2021, jury term to March 15. According to Svoboda, only
two of the cases continued were actually held during the March
term. Each of these cases had higher priority than Ostermeier’s
case. All other criminal jury trials that were scheduled for the
March 15, 2021, jury term were continued to the May 10 jury
term. Likewise, during the course of the February 2 hearing,
the district court continued Ostermeier’s jury trial to the May
10 jury term. Although the district court did not articulate its
good cause for continuing the jury trial following the February
2 hearing, the State presented evidence at the hearing on the
amended motion for discharge that the trial was continued due
to the COVID-19 pandemic, the court’s diminished ability to
hold jury trials during this time, and the backlog of cases that
was created due to the pandemic.
Ostermeier points to the administrative orders of the Supreme
Court and the Nebraska Pandemic Bench Book in support of
his argument that good cause did not exist for delaying trial
in this case. He notes that the administrative orders declare
that the trial courts are to remain open. He cites § 5.0.3 of
the Nebraska Pandemic Bench Book for the proposition that
“the constitutional right to a speedy trial and an impartial jury
requires courts to continue to perform this function.”
We first note that throughout the period of the pandemic,
the Supreme Court has issued administrative orders related to
the functioning of the trial courts. Some of those orders were
received in State v. Brown, 310 Neb. 224, 964 N.W.2d 682
(2021). While those orders have required the trial courts to
stay open, they have not mandated that courts conduct trials

- 335 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
STATE v. OSTERMEIER
Cite as 31 Neb. App. 322
and hearings without regard to public health mandates and
guidance. The court has repeatedly found that health concerns
generated by the pandemic can constitute good cause for con-
tinuing criminal trials. See, State v. Moody, 311 Neb. 143, 970
N.W.2d 770 (2022); State v. Brown, supra; State v. Chase, 310
Neb. 160, 964 N.W.2d 254 (2021).
We further note that the Nebraska Pandemic Bench Book
does not constitute binding authority on the trial courts; rather,
by its own terms, § 1.0.1 states:
The goal of this Pandemic Bench book is to assist the judi-
cial branch in preparing to face the issues that arise when
a pandemic or other public health emergency impacts the
ability to hold court. This resource will provide judges
with practical suggestions and legal authorities as the
branch strives to keep courts open during a pandemic.
While the suggestions in the bench book are made for the ben-
efit of judges who must weigh the health of litigants, attorneys,
court staff, and jurors against the rights of an accused person,
they do not serve as hard and fast rules. Ostermeier cites us to
no authority that codifies the guidelines and suggestions set out
in the bench book.
Ostermeier also cites to the absence of any written orders
regarding the original trial setting or continuances of that set-
ting prior to the order entered on February 2, 2021. He further
notes that no findings were made by the court on February 2
which demonstrate good cause for a continuance. We acknowl-
edge that the written record is devoid of orders regarding the
trial setting or continuing the trial from the January 11 jury
term. We note, however, that the lack of written orders was
explained in the evidence adduced at the time of hearing on
Ostermeier’s motion for discharge. The written orders were
not entered because of the absence of the court’s bailiff. There
was no intentional act or reckless omission which left the
record incomplete.
More importantly, we find no authority that finds that
a written order for trial is indispensable for purposes of

- 336 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
STATE v. OSTERMEIER
Cite as 31 Neb. App. 322
determining whether a defendant’s speedy trial rights have
been violated. Ostermeier cites us to Neb. Rev. Stat. § 25-914
(Reissue 2016), which reads “Every direction of a court or
judge, made or entered in writing and not included in a judg-
ment, is an order.” First, we note that this statute is found in
chapter 25 of our statutes relating to civil procedure. But even
if applicable, the statute does not say that orders made on the
record in open court are not orders. Here, our record is clear
that a trial setting was made at the October 6, 2020, arraign-
ment. The parties were present and thereafter operated under
the assumption that trial would be held during the January 11,
2021, jury term. The record is also clear that although no order
can be found in our record that continued the case past January
11, a status hearing was set for January 25 and then was con-
tinued to February 2 due to inclement weather. No motion was
filed to clarify why the case was not tried on January 11, and
no inquiry was made to the bailiff or the clerk of the district
court by either party. We can find no reason why the absence
of a written order for trial is necessary to our analysis or is
prejudicial to Ostermeier.
Similarly, while we acknowledge that it would be prefer-
able that there be an order of continuance in our case file
which demonstrates whether the continuance was entered
based on a motion by one of the parties or was entered sua
sponte by the court, we find that given the record provided
in this case, the absence of such an order does not require us
to find that Ostermeier’s speedy trial rights were violated. We
first note our prior discussion of State v. Chase, 310 Neb. 160,
964 N.W.2d 254 (2021). The Supreme Court found in Chase
that a court which continues a case sua sponte is not required
to articulate its reasons for good cause at the time the order
is entered. Rather, “[t]he only timing requirement implicit in
§ 29-1207(4)(f) is that the substantial reason affording a legal
excuse objectively existed at the time of the delay.” State v.
Chase, 310 Neb. at 172, 964 N.W.2d at 263. We find that the
record herein provides sufficient information regarding the

- 337 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
STATE v. OSTERMEIER
Cite as 31 Neb. App. 322
delays which occurred to be adequate for the district court and
this court to make a determination of the issues presented by
the motion to discharge. We caution that in other cases under
different circumstances, we may not reach this conclusion.
But here, despite the omission of written orders of continu-
ance being entered in this case, we nonetheless find that the
record provided is sufficient.
The record in this case provides sufficient evidence regard-
ing the context and circumstances that were in existence dur-
ing the specific periods that the continuances were ordered
in conjunction with this case relating to the COVID-19 pan-
demic, the related public health concerns and restrictions,
and the effect of the pandemic and related restrictions on the
district court’s ability to hold jury trials. The November 2020
Administrative Order demonstrated that the pandemic had
reached the “‘Severe’” stage, causing cases set for jury trial
in December to be continued. While this order does not cover
the present case, it does demonstrate that cases set prior to this
case were being added to the January 2021 jury panel. Based
on the affidavits of Svoboda and the December 23, 2020,
orders entered in the other cases set for trial during the January
11, 2021, jury term, the risks associated with the COVID-19
pandemic had significantly increased, placing the public and
court personnel at risk. These orders continued additional
cases, placing additional strain on the district court’s ability to
hear cases. This congestion of cases resulted in further delays
which ultimately resulted in many cases being delayed from
January 2021 to May 2021. Based on the whole of the record,
there was sufficient evidence to demonstrate that there was
good cause to continue Ostermeier’s trial from January 11 to
the February 2 status hearing due to the COVID-19 pandemic
and inclement weather. There was also sufficient evidence to
demonstrate that good cause existed to continue the trial to
the May jury term due to a backlog of cases that had occurred
due to the pandemic. The evidence demonstrates the dramatic
rise in the number of cases placed into the March and May

- 338 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
STATE v. OSTERMEIER
Cite as 31 Neb. App. 322
jury terms as compared with January. While there was evi-
dence that some cases may have been brought to trial, there
is no indication that sufficient time existed to try all of the
backlogged cases prior to the May term. In addition, the fact
that two cases assigned to other judges were continued to May
based on reasons other than the pandemic does not negate the
backlog that remained. Accordingly, we find, as did the district
court, that the period from December 23, 2020, to February
2, 2021, was properly excludable for good cause due to the
COVID-19 pandemic. We further find that the period from
February 2 until May 10 was excludable based on the back-
log of cases created due to the pandemic. As such, we find
no clear error in the district court’s speedy trial computation
which found that at the time the motion to discharge was filed,
52 days remained to bring Ostermeier to trial.
Consent.
[9] Having determined that the district court committed no
clear error with respect to its exclusion of time based on good
cause for the delays in trial, we need not express an opinion
on whether counsel for Ostermeier consented to the May 2021
trial setting. We further express no opinion on whether counsel
for Ostermeier moved for a later trial date when he declined
the court’s offer to set the case for trial in November 2020,
but, rather, requested that the case be set in January 2021. An
appellate court is not obligated to engage in an analysis that is
not necessary to adjudicate the case and controversy before it.
In re Conservatorship of Abbott, 295 Neb. 510, 890 N.W.2d
469 (2017).
CONCLUSION
We find no clear error in the district court’s decision to deny
Ostermeier’s amended motion for absolute discharge.
Affirmed.