State v. Coomes , 309 Neb. 749 ( 2021 )


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    www.nebraska.gov/apps-courts-epub/
    09/24/2021 12:10 AM CDT
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    Nebraska Supreme Court Advance Sheets
    309 Nebraska Reports
    STATE v. COOMES
    Cite as 
    309 Neb. 749
    State of Nebraska, appellee, v.
    Keith P. Coomes, appellant.
    ___ N.W.2d ___
    Filed July 23, 2021.    No. S-20-720.
    1. Judgments: Speedy Trial: Appeal and Error. Generally, 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: 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. Appeal and Error. Plain error exists where there is an error, plainly
    evident from the record but not complained of at trial, which prejudi-
    cially affects a substantial right of a litigant and is of such a nature that
    to leave it uncorrected would cause a miscarriage of justice or result in
    damage to the integrity, reputation, and fairness of the judicial process.
    4. Criminal Law: Trial: Evidence: Proof. Trial courts have discretion
    regarding the order of proof, even in criminal cases.
    5. Trial: Evidence: Proof. The order in which evidence is presented gen-
    erally does not affect the burden of proof.
    6. ____: ____: ____. The order of proof is a rule of practice, not of law,
    and departures are allowed whenever the court considers them necessary
    to promote justice, so long as the trial court does not place the burden of
    proof on the wrong party.
    7. Trial: Evidence: Proof: Appeal and Error. Error ordinarily cannot be
    successfully asserted on account of any irregularity in the order of proof
    unless prejudice is shown.
    8. Speedy Trial: Evidence: Proof. To meet its burden of proving exclud-
    able time under Neb. Rev. Stat. § 29-1207(4), the State is entitled to rely
    on evidence offered by the defendant and received by the court.
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    STATE v. COOMES
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    309 Neb. 749
    9. Speedy Trial. To calculate the 6-month speedy trial period under Neb.
    Rev. Stat. § 29-1207 (Reissue 2016), 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.
    10. ____. The 6-month period within which an accused is to be brought to
    trial refers to a period of 6 calendar months, not 180 days.
    11. Speedy Trial: Motions for Mistrial. Once a mistrial is granted, the
    speedy trial clock is restarted, and the 6-month speedy trial period com-
    mences to run from the date of the mistrial.
    12. Speedy Trial. The primary burden is on the State to bring an accused
    person to trial within the time provided by law.
    13. Speedy Trial: Proof. When a motion for absolute discharge is filed, the
    State bears the burden to show, by the greater weight of the evidence,
    the applicability of one or more of the excluded time periods under Neb.
    Rev. Stat. § 29-1207(4) (Reissue 2016).
    14. 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, one that affords a legal excuse; it is a factual question
    dealt with on a case-by-case basis.
    15. Good Cause: Proof. A district court’s good cause findings must be
    supported by evidence in the record, and the State bears the burden of
    establishing facts showing that good cause existed.
    16. Speedy Trial: Good Cause: Appeal and Error. When a trial court
    relies on Neb. Rev. Stat. § 29-1207(4)(f ) (Reissue 2016) to exclude time
    from the speedy trial calculation, a general finding of “good cause” will
    not suffice. Instead, the court must make specific findings as to the good
    cause which resulted in the delay, and an appellate court will give defer-
    ence to such factual findings unless they are clearly erroneous.
    17. Speedy Trial: Words and Phrases. For purposes of the speedy trial cal-
    culation, there is no meaningful distinction between the phrases “period
    of time” and “period of delay.”
    18. ____: ____. Because a period of delay is generally synonymous with a
    period of time, excludable periods can result from delays in the progres-
    sion of a criminal case regardless of whether the trial date was post-
    poned or remained unchanged.
    19. Speedy Trial: Appeal and Error. In an appeal from the denial of a
    motion for absolute discharge, the State as appellee does not request
    affirmative relief by arguing that additional periods of delay, which
    were neither considered nor ruled upon by the district court, are also
    properly excludable.
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    Nebraska Supreme Court Advance Sheets
    309 Nebraska Reports
    STATE v. COOMES
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    309 Neb. 749
    20. Speedy Trial: Motions for Continuance. Excludable time for a con-
    tinuance begins the day after the continuance is granted and includes the
    day on which the continuance ends.
    Appeal from the District Court for Dawes County: Travis P.
    O’Gorman, Judge. Affirmed.
    Amy L. Patras and Andrew M. Pope, of Crites, Shaffer,
    Connealy, Watson, Patras & Watson, P.C., L.L.O., for appellant.
    Douglas J. Peterson, Attorney General, and Jordan Osborne
    for appellee.
    Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.
    Stacy, J.
    Keith P. Coomes appeals from the district court’s denial of
    his motion for absolute discharge. Among other things, Coomes
    argues the court impermissibly shifted the burden of proof dur-
    ing the hearing on his motion, and he argues the court erred
    in finding “good cause” under Neb. Rev. Stat. § 29-1207(4)(f )
    (Reissue 2016) to exclude a period of time immediately follow-
    ing the appointment of replacement defense counsel. Although
    our speedy trial calculations differ somewhat from the trial
    court’s calculations, we agree that Coomes’ statutory speedy
    trial rights were not violated and therefore affirm.
    I. BACKGROUND
    1. First Trial
    On August 9, 2018, the State filed an information in the
    district court for Dawes County, charging Coomes with assault
    in the first degree (a Class II felony) and assault in the third
    degree (a Class I misdemeanor). Coomes retained attorney Jon
    Worthman to represent him.
    After several continuances agreed to by the defense, the
    matter came on for jury trial on September 12, 2019. The jury
    found Coomes not guilty on the third degree assault charge,
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    STATE v. COOMES
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    but could not reach a unanimous verdict on the other charge.
    The court therefore accepted the jury’s verdict on the third
    degree assault charge, and it declared a mistrial on the first
    degree assault charge. Later the same day, the court set the
    matter for a status hearing on October 22 to address whether
    the State would seek retrial on the charge of first degree
    assault.
    2. Proceedings on Retrial
    (a) October 22, 2019, to
    January 17, 2020
    At the status hearing on October 22, 2019, defense counsel
    appeared without Coomes and moved to continue the hearing,
    advising that Coomes had been seriously injured in a motor­
    cycle accident and required surgery. The court granted the
    motion and continued the matter to December 10.
    At the December 2019 hearing, defense counsel again
    appeared without Coomes and requested another continuance,
    representing that Coomes was still recovering and unable to
    leave his home. The continuance was granted and a status con-
    ference was set for January 7, 2020.
    At the January 7, 2020, hearing, defense counsel again
    appeared without Coomes and moved to continue because his
    client “still [couldn’t] travel.” The court granted the motion
    and continued the matter for a pretrial hearing on January 17.
    No one disputes that the period of delay from October 22,
    2019, to January 17, 2020, was attributable to Coomes for pur-
    poses of the speedy trial calculation.
    (b) January 17 to February 11, 2020
    The pretrial hearing set for January 17, 2020, did not occur.
    Instead, the district court entered an order stating: “This mat-
    ter comes before the Court on the Court’s own Motion. Jon
    Worthman is removed as counsel for the Defendant. A status
    hearing will be held in this matter on Feb[.] 11, 2020, at 1:00,
    p.m.” The order did not provide a reason for the sua sponte
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    STATE v. COOMES
    Cite as 
    309 Neb. 749
    removal of Coomes’ retained counsel, but in a later order, the
    court stated that Worthman had been arrested. 1
    (c) February 11 to March 10, 2020
    At the status hearing on February 11, 2020, Coomes appeared
    without counsel. On the record, the court informed Coomes
    that Worthman was “no longer practicing” law and asked
    Coomes what he wanted to do about counsel moving forward.
    Coomes indicated he would like the court to consider appoint-
    ing counsel in this case, as well as in an unrelated criminal
    case he had pending. After obtaining information on Coomes’
    financial situation, the court stated:
    Based on what I know and what you’ve provided to me,
    I will find that you are indigent as that term is defined by
    the law. I will appoint the public defender in both of your
    cases . . . to represent you.
    What I will do is I will give her a chance to meet with
    you; become familiar with your files. So I will set a status
    conference on March 10th at one o’clock. So you need to
    be back here that date and time with [the public defender]
    and then it’ll go forward.
    Later that same day, the prosecutor and the public defender
    appeared before the court, and the public defender made an
    oral motion to withdraw based on a conflict of interest. The
    court granted the motion and appointed attorney Andrew Pope
    to represent Coomes.
    (d) March 10 to April 7, 2020
    At the status hearing on March 10, 2020, Coomes was pres-
    ent with his appointed counsel, Pope. The court asked Pope
    whether he had been able to review the file and “get caught
    up.” Counsel replied, “I haven’t, Your Honor.” He explained,
    “I just today had a chance to speak with Mr. Coomes” and
    had just filed motions for discovery and for preparation of
    1
    See, generally, State of Nebraska ex rel. Counsel for Dis. v. Worthman, 
    306 Neb. 289
    , 
    953 N.W.2d 534
     (2020).
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    STATE v. COOMES
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    309 Neb. 749
    the transcript from the original trial. When asked by the court
    whether he would be ready for a pretrial hearing soon, Coomes’
    counsel replied, “Once I get discovery and have a chance to go
    through that, which I don’t think it would be too much of an
    issue, I could get things moving towards pretrial.” With the
    agreement of the parties, the court set another status hearing
    for April 7, with the expectation that a pretrial date would be
    set at that hearing.
    Our record shows the pretrial motions mentioned by
    Coomes’ counsel during the status hearing were filed on March
    10, 2020, and a journal entry dated April 3, 2020, shows the
    motions were granted.
    (e) April 7 to May 12, 2020
    At the status hearing on April 7, 2020, Coomes appeared by
    telephone and his counsel appeared via video conference. The
    State moved to continue for another status hearing “a month
    down the road,” explaining it had provided the requested dis-
    covery in the case to be retried, but had not yet provided the
    requested discovery in Coomes’ other pending criminal case.
    Coomes’ counsel responded, “Judge, that’s fine with me,” and
    the court continued the matter for another status hearing on
    May 12.
    (f ) May 12, 2020, Hearing
    and June 9 Pretrial
    The status hearing on May 12, 2020, was held via video
    conference. Coomes did not appear for the hearing, and the
    court’s attempts to reach Coomes using the number provided
    by defense counsel were unsuccessful. The hearing proceeded
    without objection, and defense counsel advised the court he had
    spoken with Coomes the day before the hearing and Coomes
    wanted to get the case “scheduled for retrial.” The court set a
    pretrial hearing for June 9 and advised defense counsel that no
    change of plea would be accepted after the pretrial.
    At the June 9, 2020, pretrial, all counsel were present and
    Coomes appeared via telephone. After discussing counsel’s
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    STATE v. COOMES
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    309 Neb. 749
    availability, the court proposed setting retrial for August 17
    and 18 and using space at the local high school or college
    to allow for social distancing of the jury. After both counsel
    indicated they were available on those dates, the court asked
    Coomes directly, “Does that work for you Mr. Coomes?”
    Coomes replied, “Yes, it does.” The court then set retrial for
    August 17 and 18.
    (g) Motion for Absolute Discharge,
    Hearing, and Order
    On August 10, 2020, Coomes filed a motion for absolute
    discharge on statutory speedy trial grounds. One week later,
    the court held a hearing on the motion and the following col-
    loquy occurred:
    THE COURT: . . . We are set for a motion for absolute
    discharge. [Defense counsel], do you have any evidence?
    [Defense counsel]: Yes, Judge. I have three exhibits
    marked Exhibit 5, Exhibit 6, and Exhibit 7. Exhibit 5 that
    I would offer into evidence is a complete transcript of
    proceedings held in this matter since I think the mistrial
    on September 12th.
    THE COURT: Any objection to 5?
    [Prosecutor]: No, Your Honor.
    THE COURT: 5 is received.
    [Defense counsel]: Exhibit 6 is an affidavit of counsel
    in support of the discharge. I would offer Exhibit 6.
    THE COURT: Any objection to 6?
    [Prosecutor]: No, Your Honor.
    THE COURT: 6 is received.
    ....
    [Defense counsel]: And then Exhibit 7 is the complete
    court file in CR18-44. I’d offer Exhibit 7 into evidence.
    THE COURT: Any objection to 7?
    [Prosecutor]: No, Your Honor.
    THE COURT: 7 is received.
    ....
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    309 Nebraska Reports
    STATE v. COOMES
    Cite as 
    309 Neb. 749
    THE COURT: Any evidence from the State?
    [Prosecutor]: No, Your Honor.
    After hearing argument, the court took the matter under
    advisement. In an order entered September 28, 2020, the dis-
    trict court recited the applicable law, including that it was the
    State’s burden to prove the applicability of any excludable
    periods under § 29-1207(4). The court then overruled Coomes’
    motion for absolute discharge, reasoning:
    [W]ithout any excludable periods, [Coomes] should have
    been brought to trial by March 12, 2020.
    The Court finds there to be 163 excludable days. The
    entire time between October 22, 2019 until April 7, 2020
    is excludable time. From October 22, 2019 until at least
    January 17, 2020, the case was continued at [Coomes’]
    request because of his injuries.
    Due to the arrest of [Coomes’] original attorney, Mr.
    Pope was appointed to represent [Coomes] on January 17,
    2020. Mr. Pope needed time to be brought up to speed on
    [Coomes’] case to provide him with a proper defense. Mr.
    Pope was up to speed on April 7, 2020. Thus, the time
    between January 17, 2020 until April 7, 2020, is excluded
    for good cause pursuant to Section 29-[1207](4)(f ).
    The Court starts the clock again on April 7, 2020. The
    present motion stops the clock again on August 10, 2020.
    State v. Williams, 
    277 Neb. 133
     (2009).
    Adding 163 days to the original date of March 12,
    2020, gets us to August 22, 2020. [Coomes’] Motion for
    Absolute Discharge is denied.
    Coomes timely appealed, and we moved this case to our
    docket on our own motion.
    II. ASSIGNMENTS OF ERROR
    Coomes assigns five errors, which we consolidate and
    restate into three. He assigns the district court erred in (1)
    requiring him to produce his evidence in support of absolute
    discharge first, thereby improperly shifting the burden of proof
    from the State to him; (2) finding the State met its burden
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    of proving excludable time when it offered no evidence at
    the hearing; and (3) finding there was “good cause” under
    § 29-1207(4)(f ) to exclude the time period from January 17 to
    April 7, 2020.
    III. 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
    erroneous. 2 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
    IV. ANALYSIS
    1. Burden of Proof
    Coomes’ first two assignments of error pertain to the bur-
    den of proof. In his first assignment, Coomes argues that
    “the district court should have started the presentation of evi-
    dence - the burden of production of evidence - with the State,” 4
    but instead “required [him] to produce his evidence in support
    of his Motion for Absolute Discharge” 5 first. Coomes argues
    the order in which evidence was presented impermissibly
    shifted the burden of proof from the State to him. In his second
    assignment, Coomes argues that because the State failed to
    offer any evidence at the hearing, it necessarily failed to meet
    its burden of proving any excludable periods of time. Coomes
    admits he did not raise either of these issues—by objection or
    otherwise—before the district court. He therefore asks that we
    review both assignments for plain error.
    2
    State v. Jennings, 
    308 Neb. 835
    , 
    957 N.W.2d 143
     (2021).
    3
    State v. Hernandez, ante p. 299, 
    959 N.W.2d 769
     (2021).
    4
    Brief for appellant at 14.
    5
    
    Id.
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    [3] Plain error exists where there is an error, plainly evident
    from the record but not complained of at trial, which prejudi-
    cially affects a substantial right of a litigant and is of such a
    nature that to leave it uncorrected would cause a miscarriage
    of justice or result in damage to the integrity, reputation, and
    fairness of the judicial process. 6 As we explain, on this record
    there is no plain error regarding either the order of proof or the
    burden of proof.
    (a) No Plain Error in Order of Proof
    [4-7] Nebraska has a statute which sets out the order in
    which evidence should be presented at trial, 7 but we have long
    recognized that trial courts have discretion regarding the order
    of proof, 8 even in criminal cases. 9 Customarily, the party bear-
    ing the burden of proof presents its evidence first. 10 But the
    order in which evidence is presented generally does not affect
    the burden of proof. 11 This is so because the order of proof
    is “a rule of practice, not of law, and departures are allowed
    6
    State v. Starks, 
    308 Neb. 527
    , 
    955 N.W.2d 313
     (2021).
    7
    See Neb. Rev. Stat. § 29-2016 (Reissue 2016).
    8
    See, Westgate Rec. Assn. v. Papio-Missouri River NRD, 
    250 Neb. 10
    ,
    
    547 N.W.2d 484
     (1996) (trial court has discretion to allow introduction
    of evidence in rebuttal which should have been introduced during case in
    chief ); Hyde v. Cleveland, 
    203 Neb. 420
    , 
    279 N.W.2d 105
     (1979) (order of
    proof is within trial court’s discretion and irregularity cannot successfully
    be asserted absent prejudice); Berggren v. Hannan, O’Dell & Van Brunt,
    
    116 Neb. 18
    , 
    215 N.W. 556
     (1927) (same).
    9
    See, State v. Osborn, 
    241 Neb. 424
    , 
    490 N.W.2d 160
     (1992) (order of
    proof is within discretion of trial court and ruling will not be reversed
    absent prejudice); State v. Adams, 
    181 Neb. 75
    , 
    147 N.W.2d 144
     (1966)
    (order of proof is within discretion of trial court); State v. Barr, 
    90 Neb. 766
    , 
    134 N.W. 525
     (1912) (order of proof is within discretion of trial court
    and reviewed for abuse of discretion).
    10
    See 5 Am. Jur. Trials 505, § 3 at 509-10 (1966) (“[u]nder the normal order
    of proof the party with the burden of proof also has the duty or burden of
    proceeding with the evidence to establish the facts”).
    11
    See 75 Am. Jur. 2d Trial § 269 (2018).
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    whenever the court considers them necessary to promote jus-
    tice, so long as the trial court does not place the burden of
    proof on the wrong party.” 12 As such, error ordinarily cannot
    be successfully asserted on account of any irregularity in the
    order of proof unless prejudice is shown. 13
    On this record, we reject Coomes’ suggestion that the trial
    court committed plain error by requiring him to produce his
    evidence first. First, we question whether the order of proof
    in this case can fairly be characterized as a decision of the
    court at all. At the start of the hearing, the court stated, “We
    are set for a motion for absolute discharge. [Defense counsel],
    do you have any evidence?” Defense counsel then proceeded
    to offer three exhibits. Nowhere in this exchange did the court
    require or even invite Coomes to produce his evidence first. It
    appears to us that the court’s standard housekeeping question
    to defense counsel simply prompted counsel to offer his evi-
    dence at that time.
    But even if we construe the court’s statement as a deliber-
    ate invitation to Coomes to offer his evidence first, we see no
    indication on this record that the order of proof at the eviden-
    tiary hearing caused the court to impermissibly shift the burden
    of proving excludable time from the State to Coomes. To the
    contrary, the court’s order correctly recited the settled prin-
    ciple that the State bears the burden to prove, by the greater
    weight of the evidence, the applicability of one or more of the
    excluded time periods under § 29-1207(4). 14
    12
    Id. at 523. See, also, Osborn, 
    supra note 9,
     
    241 Neb. at 430,
     
    490 N.W.2d at 165
     (“the judge may determine generally the order in which parties will
    adduce proof; his or her determination will be reviewed only for abuse of
    discretion”); Small v. State, 
    165 Neb. 381
    , 395, 
    85 N.W.2d 712
    , 720-21
    (1957) (“[t]he order in which a party shall introduce his proof is to a great
    extent discretionary with the trial court, and the court’s action will not
    be reversed unless an abuse of discretion is shown”); Daniel A. Morris,
    Nebraska Trials § 8:3 at 225 (2020) (“[a]ny departure from the usual order
    of proof is discretionary with the trial court”).
    13
    See Hyde, 
    supra note 8
    . See, also, Morris, supra note 12.
    14
    See, e.g., Jennings, 
    supra note 2
    .
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    No matter the reason for the irregularity in the order of
    proof, we can discern no prejudice to a substantial right of
    Coomes based on the fact that his counsel offered evidence
    first. We therefore find no plain error resulting from the order
    of proof during the evidentiary hearing.
    (b) State Can Rely on Evidence
    Adduced by Coomes
    Coomes’ second assignment of error argues that because
    the State failed to offer any evidence at the absolute discharge
    hearing, it necessarily failed to meet its burden of proof and it
    was plain error for the district court to conclude otherwise. We
    rejected a similar argument in State v. Hernandez. 15
    In that case, the defendant moved for absolute discharge,
    alleging his statutory speedy trial rights had been violated. 16
    The defendant’s motion contained statements of fact regarding
    his incarceration in Iowa during a certain period of time. At
    the hearing on the defendant’s motion for absolute discharge,
    the State offered no evidence. When the district court over-
    ruled the motion for discharge, it relied in part on admissions
    contained in the defendant’s motion. On appeal, the defendant
    argued that because the State presented no evidence at the
    hearing on his motion for discharge, the State necessarily failed
    to meet its burden of proof. We disagreed.
    We explained that the statements of fact in the defendant’s
    motion for absolute discharge were properly construed as
    judicial admissions and therefore served as a substitute for
    evidence. As a matter of first impression, we saw no reason
    why the principles governing judicial admissions of a party
    should not also apply to admissions made in a motion for
    absolute discharge. We therefore concluded not only that the
    State was entitled to take advantage of the defendant’s judi-
    cial admissions as evidence pertaining to the motion, but also
    that “the State’s failure to produce its own evidence did not
    15
    Hernandez, supra note 3.
    16
    Id.
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    necessarily mean that the district court erred in overruling [the
    defendant’s] motion.” 17
    Our reasoning in Hernandez is consistent with our juris-
    prudence generally, which allows parties to rely on evidence
    offered by the other side. 18 As one legal commentator explains:
    In determining the weight and sufficiency of the evi-
    dence, evidence offered by either side that is helpful to
    the other side may be used by the other side. In other
    words, any deficiencies in one party’s case may be cured
    by proof presented by the opposing party. This is so
    because the jury can consider all the evidence, regardless
    of which side introduced it.
    ....
    [P]roof of any element of an offense may come from
    either party. Consequently, where the defense presents
    evidence, this evidence may also directly or inferentially
    support a reasonable finding of guilt or may assist in
    proving the state’s case, and the accused cannot complain
    that the evidence adduced by the prosecution is insuf-
    ficient where the accused has supplied the deficiency. 19
    17
    
    Id. at 305,
     959 N.W.2d at 775.
    18
    See Miller v. E.M.C. Ins. Cos., 
    259 Neb. 433
    , 444, 
    610 N.W.2d 398
    , 407-
    08 (2000) (“[t]he burden of proof which a party has may be supported
    by evidence produced by the opposing party as well as by his or her
    own evidence”). See, also, State v. Brown, 
    235 Neb. 10
    , 
    453 N.W.2d 576
     (1990) (affirming denial of motion to suppress where only evidence
    presented was offered by defendant).
    19
    23A C.J.S. Criminal Procedure and Rights of Accused § 1547 at 266-67
    (2016). See, also, Rankin v. State, 
    953 S.W.2d 740
    , 741 (Tex. Crim. App.
    1996) (“[p]roof of any element may come from either party; it is not
    required that the proof come solely from the State”); State v. Pittera, 
    139 N.H. 257
    , 260, 
    651 A.2d 931
    , 933 (1994) (“[w]e review the entire trial
    record because, even though the defendant is not required to present a
    case, if he chooses to do so, he takes the chance that evidence presented in
    his case may assist in proving the State’s case”); People v. Husar, 
    22 Ill. App. 3d 758
    , 767, 
    318 N.E.2d 24
    , 32 (1974) (“[e]vidence introduced by a
    defendant may be considered by the trier of the facts,” and “it may supply
    deficiencies in the State’s proof ”).
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    Coomes offered three exhibits at the hearing on his motion
    for absolute discharge: a certified copy of the court file in his
    criminal case, transcripts of the various hearings before the
    district court after the mistrial was declared, and an affidavit
    from Coomes’ counsel reciting the relevant procedural history
    and showing counsel’s speedy trial calculations. After the court
    received these exhibits, the State did not offer any additional
    evidence, and the matter was taken under advisement.
    [8] While it is somewhat puzzling that the State did not offer
    evidence, or at least join in the offer made by Coomes, we nev-
    ertheless hold the State was entitled to rely upon the evidence
    offered by Coomes, and received by the court, in meeting its
    burden of proving excludable time under § 29-1207(4). 20 On
    this record, it was not plain error for the court to rely on evi-
    dence offered by the defense when determining whether the
    State met its burden of proof.
    2. Speedy Trial Analysis
    Considering all available evidence in the record, we proceed
    to address Coomes’ final assignment of error, in which he
    argues the record does not support the trial court’s finding that
    “good cause” under § 29-1207(4)(f ) excludes the time period
    from January 17 to April 7, 2020. First, we review the prin-
    ciples of law governing speedy trial calculations generally.
    A criminal defendant’s speedy trial rights are governed by
    § 29-1207 and Neb. Rev. Stat. § 29-1208 (Reissue 2016). As
    pertinent to this appeal, § 29-1207 provides, in relevant part:
    (1) 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.
    (2) Such six-month period shall commence to run from
    the date the indictment is returned or the information
    filed . . . .
    20
    See Hernandez, supra note 3.
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    (3) If a defendant is to be tried again following a mis-
    trial, an order for a new trial, or an appeal or collateral
    attack, such period shall commence to run from the date
    of the mistrial, order granting a new trial, or the mandate
    on remand.
    (4) The following periods shall be excluded in comput-
    ing the time for trial:
    ....
    (b) The period of delay resulting from a continuance
    granted at the request or with the consent of the defendant
    or his or her counsel. . . . A defendant is deemed to have
    waived his or her right to speedy trial when the period of
    delay resulting from a continuance granted at the request
    of the defendant or his or her counsel extends the trial
    date beyond the statutory six-month period;
    ....
    (f ) Other periods of delay not specifically enumerated
    in this section, but only if the court finds that they are for
    good cause.
    [9-11] To calculate the 6-month period under § 29-1207, “a
    court must exclude the day the complaint was filed, count for-
    ward 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.” 21 The 6-month period within which an accused is to
    be brought to trial refers to a period of 6 calendar months, not
    180 days. 22 Once a mistrial is granted, the speedy trial clock is
    restarted, 23 and the 6-month speedy trial period commences to
    run from the date of the mistrial. 24
    [12,13] We have long recognized that the primary burden
    is on the State to bring an accused person to trial within the
    21
    State v. Chapman, 
    307 Neb. 443
    , 448, 
    949 N.W.2d 490
    , 493-94 (2020).
    22
    See State v. Jones, 
    208 Neb. 641
    , 
    305 N.W.2d 355
     (1981).
    23
    State v. Dockery, 
    273 Neb. 330
    , 
    729 N.W.2d 320
     (2007).
    24
    
    Id.
     See § 29-1207(3).
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    time provided by law. 25 If a defendant is “not brought to trial
    before the running of the time for trial as provided for in sec-
    tion 29-1207, as extended by excluded periods, he or she shall
    be entitled to his or her absolute discharge from the offense
    charged.” 26 When a motion for absolute discharge is filed, the
    State bears the burden to show, by the greater weight of the
    evidence, that one or more of the excluded time periods under
    § 29-1207(4) are applicable. 27
    In this case, all parties agree the 6-month speedy trial clock
    was restarted on September 12, 2019, the date the mistrial was
    declared. 28 Excluding that day, counting forward 6 months, and
    backing up 1 day, the State was required to retry Coomes on
    or before March 12, 2020, unless the State proved excludable
    time periods.
    We agree with the parties that the 87-day period between
    October 22, 2019, and January 17, 2020, was properly exclud-
    able as a period of delay resulting from continuances granted
    at the request of Coomes’ counsel. 29 The dispute in this appeal
    centers around the excludability of various periods of delay
    occurring after January 17.
    The district court found the entire period between January
    17 and April 7, 2020, was excludable for “good cause” under
    § 29-1207(4)(f ), due to the appointment of replacement defense
    counsel who “needed time to be brought up to speed” in order
    to provide a proper defense. On appeal, Coomes argues none of
    the time after January 17 should have been excluded.
    25
    See, Hernandez, supra note 3; State v. Richter, 
    240 Neb. 223
    , 
    481 N.W.2d 200
     (1992); State v. Beck, 
    212 Neb. 701
    , 
    325 N.W.2d 148
     (1982); State
    v. Bolton, 
    210 Neb. 694
    , 
    316 N.W.2d 619
     (1982), disapproved on other
    grounds, State v. Tamayo, 
    280 Neb. 836
    , 
    791 N.W.2d 152
     (2010).
    26
    § 29-1208.
    27
    Hernandez, supra note 3.
    28
    See Dockery, 
    supra note 23
    .
    29
    See § 29-1207(4)(b).
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    The State disagrees. It asserts the trial court properly
    excluded the period between February 11 and April 7, 2020,
    for good cause under § 29-1207(4)(f ). In addition, the State
    argues that Coomes consented to the period of delay between
    March 10 and May 12, and it asserts that time is also exclud-
    able under § 29-1207(4)(b).
    In the sections that follow, we consider the parties’ arguments.
    (a) Good Cause
    [14] “Good cause,” for purposes of § 29-1207(4)(f ), is not
    defined by statute, but in the related context of considering
    “good cause” under the speedy trial provisions of Nebraska’s
    detainer statute, 30 we have said “‘[g]ood cause means a sub-
    stantial reason; one that affords a legal excuse.’” 31 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.’” 32 We have found this general definition to
    be fitting when analyzing “good cause” to exclude time under
    § 29-1207(4)(e), 33 and we now conclude it is also fitting to
    apply when analyzing good cause under § 29-1207(4)(f ).
    [15,16] A district court’s good cause findings must be sup-
    ported by evidence in the record, and the State bears the bur-
    den of establishing facts showing that good cause ­existed. 34
    Moreover, when a trial court relies on § 29-1207(4)(f ) to
    exclude time from the speedy trial calculation, we have said
    that a general finding of “good cause” will not suffice. 35
    Instead, the court must make specific findings as to the
    good cause which resulted in the delay. 36 An appellate court
    30
    See Neb. Rev. Stat. § 29-3805 (Reissue 2016).
    31
    State v. Kolbjornsen, 
    295 Neb. 231
    , 237, 
    888 N.W.2d 153
    , 157 (2016).
    32
    
    Id. 33
    State v. Beitel, 
    296 Neb. 781
    , 
    895 N.W.2d 710
     (2017).
    34
    See State v. Baird, 
    259 Neb. 245
    , 
    609 N.W.2d 349
     (2000).
    35
    State v. Kinstler, 
    207 Neb. 386
    , 
    299 N.W.2d 182
     (1980).
    36
    See 
    id.
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    will give deference to such factual findings unless they are
    clearly erroneous. 37
    With these principles in mind, we consider the district
    court’s factual findings of good cause. We focus first on the
    time period from January 17 to February 11, 2020.
    (i) January 17 to February 11, 2020
    On January 17, 2020, Coomes’ counsel was removed by a
    sua sponte order of the trial court, and replacement counsel
    was appointed by the court on February 11. In his appellate
    briefing, Coomes questions the trial court’s authority to remove
    his privately retained counsel, but this appeal does not require
    us to address the propriety of the court’s decision in that regard
    and we express no opinion on that issue. Instead, the inquiry
    for purposes of our speedy trial analysis is whether the district
    court’s finding of good cause for the delay resulting from the
    appointment of replacement counsel was clearly erroneous.
    The court’s order recited the following factual findings in
    support of its good cause determination:
    Due to the arrest of [Coomes’] original attorney, Mr.
    Pope was appointed to represent [Coomes] on January 17,
    2020. Mr. Pope needed time to be brought up to speed on
    [Coomes’] case to provide him with a proper defense. Mr.
    Pope was up to speed on April 7, 2020. Thus, the time
    between January 17, 2020 until April 7, 2020, is excluded
    for good cause pursuant to Section 29-[1207](4)(f ).
    The court’s finding that replacement counsel was appointed on
    “January 17, 2020,” is clearly erroneous, as the record plainly
    shows that replacement counsel was not appointed until the
    hearing on February 11. Because the trial court made no other
    specific factual findings that could arguably support a find-
    ing of good cause for the delay from January 17 to February
    11, we agree with Coomes that the record does not support
    excluding the period from January 17 to February 11 for good
    37
    See State v. Feldhacker, 
    267 Neb. 145
    , 
    672 N.W.2d 627
     (2004).
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    cause. But as we explain next, we find the record does support
    the court’s good cause finding for the period from February 11
    to April 7.
    (ii) February 11 to April 7, 2020
    Coomes argues this time period was not excludable under
    the good cause provision of § 29-1207(4)(f ) for two rea-
    sons. First, he argues there was no “period[] of delay” for
    purposes of § 29-1207(4)(f ). Second, he argues there was no
    evidence to support the conclusion that replacement counsel
    needed additional time to prepare for trial. We find no merit to
    either argument.
    For his “period[] of delay” argument, Coomes relies on State
    v. Covey 38 for the proposition that “[u]nder a plain reading of
    § 29-1207(4)(f ), before an evaluation for good cause need be
    made, there must first be a ‘period of delay.’” As we explain,
    that case is inapposite.
    In Covey, we were considering whether a “‘Motion to
    Quash Death Penalty’” filed by the defendant amounted to a
    “period of delay” for purposes of calculating speedy trial. We
    concluded it did not, reasoning the motion recited that a hear-
    ing on its substance should only be taken up “‘in the event of
    Defendant’s conviction for first degree murder.’” 39 There was
    no “period of delay” caused by filing the motion, because “by
    its terms, this motion was not to be decided before trial as to
    guilt nor did it impact the commencement of trial.” 40 The cir-
    cumstances in Covey were unique in that the defendant’s pre-
    trial motion did not have any bearing at all on the preparation
    for, or commencement of, trial, and by its own terms was not
    to be taken up until after trial.
    [17,18] Other cases clarify that, for purposes of the speedy
    trial calculation, there is no meaningful distinction between
    38
    State v. Covey, 
    267 Neb. 210
    , 215, 
    673 N.W.2d 208
    , 212 (2004).
    39
    
    Id. 40
    Id.
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    the phrases “period of time” and “period of delay.” 41 Because a
    period of delay is generally synonymous with a period of time,
    we have said that excludable periods can result from delays in
    the progression of a criminal case “regardless of whether the
    trial date was postponed or remained unchanged.” 42 Based on
    this settled authority, we find no merit to Coomes’ argument
    that there was no “period of delay” between February 11 and
    April 7, 2020.
    Similarly, we find no merit to Coomes’ argument that there
    was no evidence to support the finding that replacement coun-
    sel needed additional time to prepare for trial, thus there was
    no “good cause” for excluding the period from February 11 to
    April 7, 2020. As a threshold matter, we observe generally that
    under the appropriate circumstances, the period of time follow-
    ing the appointment of replacement counsel can support a good
    cause finding under § 29-1207(4)(f ), assuming the trial court
    makes sufficient specific findings. 43 And in the instant appeal,
    we conclude the district court’s findings were sufficient to sup-
    port its determination of good cause for the delay occasioned
    by the appointment of Coomes’ replacement counsel.
    Immediately after appointing replacement defense counsel
    on February 11, 2020, the court advised Coomes it would
    41
    Feldhacker, 
    supra note 37,
     267 Neb. at 155, 
    672 N.W.2d at 635
     (explaining
    that “[t]he phrase ‘period of delay’ in § 29-1207(4)(f ) refers to a specified
    period of time in which trial did not commence”).
    42
    State v. Lovvorn, 
    303 Neb. 844
    , 850, 
    932 N.W.2d 64
    , 69 (2019).
    43
    See, e.g., State v. Craig, 
    15 Neb. App. 836
    , 
    739 N.W.2d 206
     (2007)
    (finding “good cause” under § 29-1207(4)(f ) to exclude time between
    appointment of public defender and counsel’s first appearance when
    defendant previously represented to court he would retain private counsel
    and failed to do so); State v. Droz, 
    14 Neb. App. 32
    , 39, 
    703 N.W.2d 637
    ,
    643 (2005) (noting “it could be argued that there was ‘good cause’ for
    delay following the appointment of new counsel,” but declining to find
    period of time excludable for good cause because court failed to make
    specific findings to that effect). See, also, Blackwell v. State, 
    338 Ark. 671
    , 
    1 S.W.3d 399
     (1999) (finding that delay resulting from need for
    appointment of new counsel excludable for good cause).
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    set the next status hearing for March 10, to give Coomes a
    chance to meet with his new counsel and allow counsel to
    become familiar with Coomes’ files; Coomes responded, “All
    right. Thank you.” At the hearing on March 10, the court asked
    defense counsel whether he had been able to review the file
    and “get caught up,” and counsel replied, “I haven’t, Your
    honor.” Counsel elaborated that he had spoken to Coomes
    for the first time that day and had just filed motions for dis-
    covery and for preparation of the transcript from the original
    trial. When asked by the court whether he would be ready for
    a pretrial hearing soon, defense counsel replied, “Once I get
    discovery and have a chance to go through that, which I don’t
    think it would be too much of an issue, I could get things mov-
    ing towards pretrial.” Based on this information, the court set
    the next status hearing for April 7, with the expectation that a
    pretrial date would be set at that time.
    This evidence supports the trial court’s specific factual find-
    ing that Coomes’ new defense counsel “needed time to be
    brought up to speed on [Coomes’] case to provide him with
    a proper defense.” On this record, there is no clear error in
    the trial court’s determination that the circumstances pro-
    vided a substantial reason affording a legal excuse for the
    delay 44 and therefore supported a finding of good cause under
    § 29-1207(4)(f ) to exclude the period of delay from February
    11 to April 7, 2020. This resulted in 56 days of excluded time.
    Because of our conclusion regarding good cause, it is
    unnecessary to address the State’s alternative argument that
    the period from March 10 through April 7, 2020, is also prop-
    erly excludable under § 29-1207(4)(b) as a period of delay
    resulting from a continuance granted with the consent of
    Coomes’ counsel. However, because the State also argues that
    the period between April 7 and May 12 is excludable under
    § 29-1207(4)(b), we consider that argument next.
    44
    See Kolbjornsen, 
    supra note 31
    .
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    (iii) April 7 to May 12, 2020
    In its order denying absolute discharge, the district court did
    not consider the excludability of any period after April 7, 2020.
    On appeal, the State argues that the period from April 7 to May
    12 is properly excluded under § 29-1207(4)(b) as a period of
    delay resulting from a continuance granted with the consent of
    Coomes’ counsel. We agree.
    As an initial matter, we reject Coomes’ suggestion that we
    cannot consider the excludability of this time period because
    the State did not file a cross-appeal. We have held that “[a]
    cross-appeal must be properly designated, pursuant to [our
    appellate rules], if affirmative relief is to be obtained.” 45 We
    have described “[a]ffirmative relief ” as “a reversal, vacation,
    or modification of a lower court’s judgment, decree, or final
    order.” 46 But here, the State is not seeking a reversal, vacation,
    or modification of the lower court’s order.
    [19] It is not unusual for our speedy trial opinions to consider
    excludable periods that differ from those considered by the
    trial court. 47 And in an appeal from the denial of a motion for
    absolute discharge, the State as appellee does not request affirm­
    ative relief by arguing that additional periods of delay, which
    were neither considered nor ruled upon by the district court,
    are also properly excludable. The absence of a cross-appeal in
    this case does not preclude us from considering whether the
    record supports additional excludable periods. 48
    [20] At the status hearing on April 7, 2020, the State made
    an oral motion to continue the matter for “a month down
    45
    State v. Bishop, 
    263 Neb. 266
    , 274, 
    639 N.W.2d 409
    , 416 (2002).
    46
    
    Id. 47
    See, e.g., State v. Billingsley, ante p. 616, ___ N.W.2d ___ (2021) (affirming
    denial of absolute discharge on grounds different than considered by trial
    court). Accord Kolbjornsen, supra note 31 (rejecting defendant’s argument
    that appellate court could not consider speedy trial issues under separate
    statute applicable to in-state prisoners because trial court applied only
    § 29-1207).
    48
    See Billingsley, supra note 47.
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    the road” and Coomes’ counsel responded, “Judge that’s fine
    with me.” The court then set the matter for a status hearing on
    May 12. As such, the period from April 7 to May 12 is a clas-
    sic example of a “delay resulting from a continuance granted
    at the request or with the consent of the defendant or his or
    her counsel,” 49 and it is properly excluded from the speedy
    trial calculation. We have explained that excludable time for
    a continuance begins the day after the continuance is granted
    and includes the day on which the continuance ends. 50 As such,
    this excludable period began on April 8 and ended on May 12,
    resulting in another 35 excludable days.
    (b) Speedy Trial Calculation
    Having considered the arguments of the parties regarding
    excludable time, we find this leaves only a calculation of the
    total number of days properly excluded. As explained, the
    speedy trial clock restarted when the mistrial was declared
    on September 12, 2019, so in the absence of excludable
    time, Coomes should have been brought to retrial by March
    12, 2019.
    There were 87 excludable days from October 22, 2019, to
    January 11, 2020, and 91 excludable days between February 11
    and May 12, 2020, for a total of 178 excludable days. Adding
    178 days to March 12, 2020, we arrive at September 6, 2020,
    which was a Sunday, so the State had until Monday, September
    7, to bring Coomes to trial.
    When Coomes filed his motion for absolute discharge on
    August 10, 2020, the speedy trial deadline had not yet expired.
    Since there was no statutory speedy trial violation, the district
    court properly overruled Coomes’ motion. Moreover, because
    Coomes’ motion for absolute discharge resulted in continu-
    ing a timely retrial to a date outside the statutory 6-month
    period, he has permanently waived his statutory speedy trial
    49
    See § 29-1207(4)(b).
    50
    Lovvorn, 
    supra note 42
    .
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    rights under § 29-1207(4)(b) and this court’s holding in State
    v. Mortensen. 51
    V. CONCLUSION
    For the foregoing reasons, we conclude that the district court
    did not clearly err in denying Coomes’ motion for absolute dis-
    charge. Accordingly, we affirm.
    Affirmed.
    Miller-Lerman, J., participating on briefs.
    Heavican, C.J., not participating.
    51
    See State v. Mortensen, 
    287 Neb. 158
    , 
    841 N.W.2d 393
     (2014).
    Freudenberg, J., concurring.
    I agree with the analysis and holding of the majority opin-
    ion. I write separately to address a period of time that such
    opinion did not find necessary to reach in its statutory speedy
    trial discussion. The majority found that sufficient speedy trial
    time remained without the need to address the period of time
    between the pretrial hearing on June 9 and when Coomes filed
    his motion for absolute discharge on August 10, 2020. It is my
    belief that the period between the pretrial conference and the
    August 17 trial date would not have counted against the State
    in the statutory speedy trial analysis.
    The State, Coomes, and his counsel all appeared at the June
    9, 2020, pretrial conference. At that time, the district court dis-
    cussed possible trial dates with the parties. Both counsel agreed
    the suggested August 17 trial date was acceptable. The district
    court also directly inquired of Coomes, “Does that [date] work
    for you . . . ?” Coomes responded, “Yes it does.” The district
    court then set the trial date, in accordance with the consent of
    the parties, to begin on August 17. Coomes filed his motion to
    discharge on August 10.
    Previously, this court has generally addressed as part of a
    statutory speedy trial analysis the period of time between the
    trial scheduling date and the date the trial begins. In State v.
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    Alvarez, 
    189 Neb. 281
    , 291-92, 
    202 N.W.2d 604
    , 610 (1972),
    we said:
    A failure by a defendant to demand a trial within the time
    he is required to be brought to trial as provided by sec-
    tions 29-1205 to 29-1209, R. S. Supp., 1971, or to object
    at the time trial date is set does not constitute a waiver of
    his [statutory speedy trial] rights . . . .
    In State v. Kinstler, 
    207 Neb. 386
    , 390-91, 
    299 N.W.2d 182
    ,
    185-86 (1980), we clarified our position:
    In a series of decisions rendered by this court since
    the enactment of the speedy trial laws by the Legislature
    of the State of Nebraska, we have announced that the
    primary burden is upon the State to bring the accused
    person to trial within the time provided by law and that,
    if he is not brought to trial within that time, he is entitled
    to an absolute discharge from the offense alleged, in the
    absence of an express waiver or waiver as provided by
    statute. Moreover, we have held that the failure of the
    accused to object at the time the trial court enters an order
    setting the trial at a date after the 6-month period does not
    constitute a waiver of his statutory right to a speedy trial
    and, further, we have held that, if a portion of the statute
    is to be tolled by reason of one of the exceptions in the
    statute, the State has the burden of proving . . . that such
    exception is applicable.
    Section 29-1207 sets forth: “(4) The following periods shall
    be excluded in computing the time for trial: . . . (b) The period
    of delay resulting from a continuance granted at the request or
    with the consent of the defendant or his or her counsel.” Such
    exception is applicable to our analysis here.
    While the holdings of Alvarez and Kinstler are instructive,
    both are factually distinguishable from the present matter. In
    Alvarez, the record was silent on whether the defendant or his
    counsel consented to the setting of the trial date. In Kinstler,
    the motion to discharge was filed and granted prior to the set-
    ting of a trial date.
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    Here, the record clearly shows that both Coomes and his
    counsel were asked by the district court about the identified
    trial date and both agreed to the continuance to that date. This
    was not mere passive acceptance of a trial date, but an agree-
    ment on the record by both parties to the delay.
    Section 29-1207(4)(b) does not limit the excludable period
    of delay to “motions,” at the request of or with the consent of
    the defendant, for continuance of a trial date previously set.
    It refers more broadly to “a continuance.” I view this “con-
    tinuance” in light of the prior language of § 29-1207(1) that
    every defendant shall be brought to trial within 6 months and
    that “such time shall be computed as provided in this sec-
    tion.” When reading a statute, what it does not say is often as
    important as what it does say, and the whole and every part
    of the statute must be considered in fixing the meaning of
    any of its parts. See Robinson v. Houston, 
    298 Neb. 746
    , 
    905 N.W.2d 636
     (2018). Viewing § 29-1207 as a whole, I believe
    § 29-1207(4)(b) refers to any delay or postponement of the
    6-month statutory period that has been requested by or con-
    sented to by the defendant or defense counsel.
    When a trial court is able to ascertain that a proposed trial
    date will fall outside the statutory period, I would continue to
    encourage trial courts, in accordance with State v. Johnson,
    
    201 Neb. 322
    , 
    268 N.W.2d 85
     (1978), overruled on other
    grounds, State v. Petty, 
    269 Neb. 205
    , 
    691 N.W.2d 101
     (2005),
    to advise the defendant thereof and ascertain on the record
    whether the defendant waives the right to a speedy trial and
    consents to the trial date set. But such an express waiver of
    the right to a speedy trial is not a condition to exclusion from
    computation, under § 29-1207(4)(b), of the period of time
    between the defendant’s consent to a trial date and the date
    consented to.
    Even if we did not view a stated acquiescence to the setting
    of a trial date as a continuance with the consent of the defend­
    ant under the plain language of § 29-1207(4)(b), it is inap-
    propriate for a defendant to gain advantage from a violation
    - 775 -
    Nebraska Supreme Court Advance Sheets
    309 Nebraska Reports
    STATE v. COOMES
    Cite as 
    309 Neb. 749
    when the defendant was a party to that violation. See State v.
    Brown, 
    307 Md. 651
    , 
    516 A.2d 965
     (1986). A defendant ordi-
    narily cannot invite an error and then complain of it. See State
    v. Williams, 
    212 Neb. 860
    , 
    326 N.W.2d 678
     (1982).
    As such, the record clearly establishes by a greater weight
    of the evidence that the period between June 9 and August
    17, 2020, was a period of delay granted with the consent
    of Coomes and his counsel which would further toll the
    statutory speedy trial clock. To find otherwise would allow
    Coomes to benefit from invited error. I believe we should have
    addressed such period of time, and therefore, I concur with the
    majority opinion.