dissenting.
I dissent from the majority opinion herein for two reasons: First, I do not feel that a defendant can deliberately ignore or flout an order of the trial court and then take advantage of his misconduct. Second, the trial date of May 13, 1977, was set by agreement of the defendant’s counsel.
On the 24th day of February 1977, the county judge entered an order in a contempt of court hearing for failure to be present in court for a scheduled jury trial on February 16, 1977. The court in that order made fact findings as follows: “* * * 5) On or about the 14th day of February, 1977, defendant’s Counsel moved for a continuance of the jury trial date set for the 16th day of February, based upon defendant’s absence from the county.
“6) Above said Motion for a Continuance was after hearing, denied by the Court and and (sic) order was entered on the 15th day of February, 1977, to show cause why defendant should not be held in Contempt of Court for failure to be present for the scheduled jury trial date.
“7) Above said Order to Show Cause was set for hearing on the 24th day of February, 1977, and due and proper notice to defendant, his attorney, and the Red Willow County Attorney was mailed on the 15th day of February, 1977.
“8) The defendant failed, neglected and refused to appear in person before the Court on the 24th day of February, 1977, as ordered, but defendant’s attorney has filed an application for a continuance of the hearing based upon defendant’s absence from the county.
“9) That above said Application for a Continuance is based upon the defendant’s absence from the county, which is the main reason for this Court’s *331original order to show cause why defendant should not be held in contempt and it was not supported by sufficient evidence to substantiate the impossibility of defendant’s presence in this Court and said Application for a Continuance should be denied.”
Under date of May 9, 1977, the defendant, giving an address as Box 96, Rangely, Colorado 81648, signed a waiver of personal appearance, and requested the court to proceed during every absence of his at all times when he is represented by his attorney. He further agreed to be present in person in court, ready for trial any day and hour which the court may fix in his absence.
Under date of May 13, 1977, the county court entered an order which, so far as material herein, reads as follows: “NOW ON THIS 11th day of May, 1977 this matter came on to be heard on the Motion to Dismiss filed by Defendant herein. Mr. Mike Freeman, County Attorney, Mr. John Battershell, Defense Attorney were present and the Defendant waived his presence by written document filed herein dated May 9, 1977. Both Attorneys in addition to Mary Fahrenbruch, Court Clerk, were sworn and presented evidence.
“BASED UPON said evidence and the record the Court finds that: * * * “(7) On the 24th day of February a hearing was held and the Defendant was found to be in contempt of Court and by consent of the Attorneys a trial date of May 13, 1977 was set for hearing this matter.
“(8) For purposes of computing the time excludable pursuant to 29-1207 the Court finds the following continuances granted at the request of or with the consent of the Defendant or his counsel:
“(A) That period from August 26, 1976 to September 2, 1976.
“(B) That period from February 14, 1977 to the trial date set for May 13, 1977.
“(C) That less than six months has expired since *332the date the complaint was filed.”
The motion to dismiss was overruled and the defendant, after trial, was found guilty as charged. On appeal to the District Court the motion to dismiss was again overruled, and the judgment of the county court was affirmed. Two courts have made fact findings on the issue of a speedy trial. I am not about to be a party to reversing those findings. In my judgment the suggestion that the defendant should have been tried within 11 days of March 16, 1977, on this record is absurd.
Defendant’s counsel argues the court could have worked the case in sooner after the trial date was set when other cases fell out. This argument borders on the ridiculous on this record considering the fact that defendant claimed to be out of the state for so long a period and found it necessary to waive personal appearances for all hearings except the trial.
White, C. J., and Boslaugh, J., join in this dissent. Brodkey, J., respondente.I believe that several additional comments are appropriate in view of the strong language contained in the dissenting opinion in this case. Apparently the dissenters are of the view that the time period after March 16, 1977, should be excluded from the computation under either subsection (4) (b), (4) (d), or (4) (f) of section 29-1207, R. R. S. 1943, all of which were discussed in the majority opinion.
It should be noted that the dissent does not refer to the evidence presented at the hearing on defendant’s motion to dismiss, but rather quotes extensively from the findings of the judge of the county court who tried the matter. It hardly needs to be said that the issue is not what the trial court found, but whether those findings are supported by any competent evidence. Specifically, the issue is whether the State met its burden of proving by a substantial preponderance of the evidence that one or more of the excluded periods of time under subsection (4) of sec*333tion 29-1207, R. R. S. 1943, is applicable. State v. Alvarez, 189 Neb. 281, 202 N. W. 2d 604 (1972).
There was not one iota of evidence presented at the hearing on the motion to dismiss that the trial date of May 13th was set with the consent of the defendant or his counsel. The trial court, after the hearing, stated as follows: “* * * I do feel that the trial date * * * was arrived at with the consent of the defendant’s counsel * * (Emphasis added.) The fact remains, however, that there was absolutely no evidence presented at the hearing which supports this finding. In fact, the witnesses at the hearing expressed confusion over when the trial date was set, and there was no testimony that the defendant or his counsel consented to the setting of the trial date on May 13th. Under these circumstances, it can hardly be said that the State proved by a substantial preponderance of the evidence that the period after March 16th should have been excluded under subsection (4) (b) of section 29-1207, R. R. S. 1943.
The second criticism of the dissent, that the defendant should not benefit from his willful absence from the jurisdiction, is also groundless. Again, the dissent does not point to any evidence which would warrant the exclusion of the time period after March 16th under either subsection (4) (d) or (4) (f) of section 29-1207, R. R. S. 1943. Furthermore, the trial court did not rely on these subsections for the obvious reason that there was no evidence to support an exclusion of the time period after March 16th under them.
As the majority opinion emphasizes, a defendant whose trial is set at the end of the 6-month period, but who fails to appear for that trial, is not necessarily entitled to an immediate trial or one within the few days remaining in the 6-month period when he subsequently appears in court. In such cases a delay after the defendant’s reappearance might be *334justified for good cause. See State v. Alvarez, supra. Therefore the majority opinion, contrary to the suggestion of the dissent, does not give a defendant license to benefit from misconduct. It simply requires the State to comply with the provisions of section 29-1207, R. R. S. 1943, by bringing the defendant to trial within 6 months unless there is good cause for not doing so, or unless one of the other exceptions of the 6-month rule is applicable. The fact that a defendant has failed to appear for trial does not authorize the State to delay the proceedings for any length of time it chooses, and there is no evidence in the present case that the delay from March 16th until May 13th was for good cause as delineated in State v. Alvarez, supra.
The Legislature has mandated that delay beyond 6 months be justified under one of the specific statutory exceptions, a fact which the dissenters choose to ignore. In this case the State simply failed to prove that any of the exceptions set forth in section 29-1207, R. R. S. 1943, apply. In this case even the county court acknowledged it had not followed proper procedures. Under section 29-1207, R. R. S. 1943, and State v. Alvarez, supra, the defendant is clearly entitled to be discharged.