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RCM Lakin

RCM Lakin

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Published by Philip D. Cave
The post-trial rules that LTC Lakin is now subject to because of his waiver of review under Article 66, UCMJ.
The post-trial rules that LTC Lakin is now subject to because of his waiver of review under Article 66, UCMJ.

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Categories:Business/Law
Published by: Philip D. Cave on Aug 02, 2011
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one year, shall follow that set forth in subsection (d)of this rule.(2) The procedure for the vacation of a suspen-sion of any lesser special court-martial punishmentshall follow that set forth in subsection (e) of thisrule.
Discussion
An officer exercising special court-martial jurisdiction may vacateany suspended punishments other than an approved suspendedbad-conduct discharge or any suspended portion of an approvedsentence to confinement for one year, regardless of whether theyare contained in the same sentence as the bad-conduct dischargeor confinement for one year. See Appendix 18 for a sample of aReport of Proceedings to Vacate Suspension of a Special Court-Martial Sentence including a bad-conduct discharge or confine-ment for one year under Article 72, UCMJ, and R.C.M. 1109(DD Form 455).
(g)
Vacation of a suspended summary court-martialsentence.
(1) Before vacation of the suspension of a sum-mar y c o urt-martia l se n t enc e , th e su m ma r y c ou r t - mar t i a l co nve n i ng au t h ority or t he c omm an d in which the probationer is serving or assigned shallcause a hearing to be held on the alleged violation(s)of the conditions of suspension.(2)
 Notice to probationer.
The person conductingthe hearing shall notify the probationer before theh e a r i n g o f t h e r i g h t s s p e c i f i e d i n s u b s e c t i o n s(d)(1)(B)(i), (ii), (iii), and (v) of this rule.(3)
 Hearing.
The procedure for the vacation hear-ing shall follow that prescribed in R.C.M. 405(g),(h)(1), and (i).(4)
 Authority to vacate suspension.
The summarycourt-martial convening authority for the commandin which the probationer is serving or assigned shallhave the authority to vacate any punishment that theofficer had the authority to order executed.(5)
 Record and recommendation.
If the hearing isnot held by the commander with authority to vacatethe suspension, the person who conducts the vaca-tion proceeding shall make a summarized record of the proceeding and forward the record and that offi-cer’s written recommendation concerning vacationt o t h e c o m m a n d e r w i t h a u t h o r i t y t o v a c a t e t h esuspension.(6)
 Decision.
A commander with authority to va-cate the suspension shall review the record producedby and the recommendation of the person who con-ducted the vacation proceeding, decide whether theprobationer violated a condition of suspension, and,if so, decide whether to vacate the suspended sen-tence. If the officer exercising jurisdiction decides tovacate the suspended sentence, that officer shall pre-pare a written statement of the evidence relied onand the reasons for vacating the suspended sentence.( 7)
 E  x e c u t i on .
A n y un ex ec ut e d p a rt of a s u s - pended sentence ordered vacated under this subsec-tion shall be ordered executed.
Rule 1110. Waiver or withdrawal of appellatereview
(a)
 In general.
After any general court-martial, ex-cept one in which the approved sentence includesdeath, and after any special court-martial in whichthe approved sentence includes a bad-conduct dis-charge or confinement for one year, the accused maywaive or withdraw appellate review.
Discussion
Appellate review is not available for special courts-martial inwhich a bad-conduct discharge or confinement for one year wasnot adjudged or approved or for summary courts-martial. Casesnot subject to appellate review, or in which appellate review iswaived or withdrawn, are reviewed by a judge advocate underR.C.M. 1112. Such cases may also be submitted to the JudgeAdvocate General for review.
See
R.C.M. 1201(b)(3). Appellatereview is mandatory when the approved sentence includes death.
(b)
 Right to counsel.
(1)
 In general.
The accused shall have the right toc o n s u l t w i t h c o u n s e l q u a l i f i e d u n d e r R . C . M .502(d)(1) before submitting a waiver or withdrawalof appellate review.(2)
Waiver.
(A)
Counsel who represented the accused at the court-martial.
The accused shall have the rightto consult with any civilian, individual military, ordetailed counsel who represented the accused at thecourt-martial concerning whether to waive appellatereview unless such counsel has been excused underR.C.M. 505(d)(2)(B).(B)
 Associate counsel.
If counsel who repre-sented the accused at the court-martial has not beenexcused but is not immediately available to consultwith the accused, because of physical separation orother reasons, associate defense counsel shall be de-tailed to the accused upon request by the accused.Such counsel shall communicate with counsel who
II-159
R.C.M. 1110(b)(2)(B)
 
represe nted t h e accused at the co u rt-marti al, and s h a l l a d v i s e t h e a c c u s e d c o n c e r n i n g w h e t h e r t owaive appellate review.(C)
Substitute counsel.
If counsel who repre-sented the accused at the court-martial has been ex-cused under R.C.M. 505(d)(2)(B), substitute defensecounsel shall be detailed to advise the accused con-cerning waiver of appellate rights.(3)
Withdrawal.
(A)
 Appellate defense counsel.
If the accused isrepresented by appellate defense counsel, the ac-cused shall have the right to consult with such coun-sel concerning whether to withdraw the appeal.(B)
 Associate defense counsel.
If the accused isrepresented by appellate defense counsel, and suchcounsel is not immediately available to consult withthe accused, because of physical separation or otherreasons, associate defense counsel shall be detailedto the accused, upon request by the accused. Suchcounsel shall communicate with appellate defensecounsel and shall ad vise th e accused wheth er to withdraw the appeal.(C)
 No counsel.
If appellate defense counselhas not been assigned to the accused, defense coun-sel shall be detailed for the accused. Such counselshall advise the accused concerning whether to with-draw the appeal. If practicable, counsel who repre-s en te d t h e a c cu se d a t t h e c o u r t - m a r t i a l s h al l be detailed.(4)
Civilian counsel.
Whether or not the accusedwas represented by civilian counsel at the court-martial, the accused may consult with civilian coun-sel, at no expense to the United States, concerningwhether to waive or withdraw appellate review.(5)
 Recod o f ial.
Any de ense counsel with whom the accused consults under this rule shall begiven reasonable opportunity to examine the recordof trial.
Discussion
Ordinarily counsel may use the accused’s copy of the record. If this is not possible, as when the accused and counsel are physi-c a l l y s e p a r a t e d , a n o t h e r c o p y s h o u l d b e m a d e a v a i l a b l e t ocounsel.
(6)
Consult.
The right to consult with counsel, asused in this rule, does not require communication inthe presence of one another.(c )
o m p ulsio n , coe r cion , i n u c em ent p oh i bied .
No person may compel, coerce, or induce an ac-cused by force, promises of clemency, or otherwiseto waive or withdraw appellate review.(d)
om o f waiver or wihawal.
A waiver or withdrawal of appellate review shall:(1) Be written;(2) State that the accused and defense counselhave discussed the accused’s right to appellate re-view and the effect of waiver or withdrawal of ap-p e l l a t e re v i e w a n d t h a t t h e a c c u s ed un d e r st an d s these matters;(3) State that the waiver or withdrawal is submit-ted voluntarily; and(4) Be s igned by the a ccused and by deense counsel.
Discussion
See
Appendix 19 (DD Form 2330) or Appendix 20 (DD Form2331) for samples of forms.
(e)
To whom submitted.
(1)
Waiver.
A waiver of appellate review shall befiled with the convening authority. The waiver shallbe attached to the record of trial.(2)
Withdrawal.
A withdrawal of appellate reviewmay be filed with the authority exercising generalc o u r t - m a r t i a l j u r i s d i c t i o n o v e r t h e a c c u s e d , w h oshall promptly forward it to the Judge AdvocateG e n e r a l , o r d i r e c t l y w i t h t h e J u d g e A d v o c a t eGeneral.(f)
Time limit.
(1)
Waiver.
The accused may sign a waiver of appellate review at any time after the sentence isannounced. The waiver must be filed within 10 daysafter the accused or defense counsel is served with aco py of the a ction und er R.C.M. 1107(h). Upon written application of the accused, the conveningauthority may extend this period for good cause, fornot more than 30 days.(2)
Withdrawal.
The accused may file withdrawalfrom appellate review at any time before such re-view is completed.(g)
 Effect of waiver or withdrawal; substantial com- pliance required.
(1)
 In general.
A waiver or withdrawal of appel-late review under this rule shall bar review by theJudge Advocate General under R.C.M. 1201(b)(1)and by the Court of Criminal Appeals. Once submit-
II-160
R.C.M. 1110(b)(2)(B)
 
ted, a waiver or withdrawal in compliance with thisrule may not be revoked.(2)
Waiver.
If the accused files a timely waiver of appellate review in accordance with this rule, therecord shall be forwarded for review by a judgeadvocate under R.C.M. 1112.(3)
Withdrawal.
Action on a withdrawal of appel-late review shall be carried out in accordance withprocedures established by the Judge Advocate Gen-eral, or if the case is pending before a Court of Criminal Appeals, in accordance with the rules of such court. If the appeal is withdrawn, the JudgeAdvocate General shall forward the record to anappropriate authority for compliance with R.C.M.1112.(4)
Substantial compliance required.
A purportedwaiver or withdrawal of an appeal which does notsubstantially comply with this rule shall have noeffect.
Rule 1111. Disposition of the record of trialafter action
(a)
General courts-martial.
(1)
Cases forwarded to the Judge Advocate Gen-eral.
A record of trial by general court-martial andt h e c o n v e n i n g a u t h o r i t y s a c t i o n s h a l l b e s e n tdirectly to the Judge Advocate General concerned if the approved sentence includes death or if the ac-cused has not waived review under R.C.M. 1110.Unless otherwise prescribed by regulations of theSecretary concerned, 10 copies of the order promul-gating the result of trial as to each accused shall beforwarded with the original record of trial. Two ad-ditional copies of the record of trial shall accompanythe original record if the approved sentence includesdeath or if it includes dismissal of an officer, cadet,or midshi p man, dishonora ble or bad- c o nduct dis - charge, or confinement for one year or more and theaccused has not waived appellate review.(2)
Cases forwarded to a judge advocate.
A re-cord of trial by general court-martial and the con-vening authority’s action shall be sent directly to a judge advocate for review under R.C.M. 1112 if thesentence does not include death and if the accusedhas waived appellate review under R.C.M. 1110.Unless otherwise prescribed by the Secretary con-cerned, 4 copies of the order promulgating the resultof trial shall be forwarded with the original record of trial.(b)
Special courts-martial.
( 1 )
C a s e s i n c l u d i n g a n a p p r o v e d b a d - c o n d u c t discharge or confinement for one year.
If the ap-proved sentence of a special court-martial includes abad-conduct discharge or confinement for one year,the record shall be disposed of as provided in sub-section (a) of this rule.(2)
Other cases.
The record of trial by a specialcourt-martial in which the approved sentence doesnot include a bad-conduct discharge or confinementfor one year shall be forwarded directly to a judgeadvocate for review under R.C.M. 1112. Four copiesof the order promulgating the result of trial shall beforwarded with the record of trial, unless otherwiseprescribed by regulations of the Secretary concerned.(c)
Summary courts-martial.
The convening author-ity shall dispose of a record of trial by summarycourt-martial as provided by R.C.M. 1306.
Discussion
See
DD Form 494 (Court-Martial Data Sheet).
Rule 1112. Review by a judge advocate
(a)
 In general.
Except as provided in subsection (b)of this rule, under regulations of the Secretary con-cerned, a judge advocate shall review:(1) Each general court-martial in which the ac-cu sed has waived or withdrawn appellate review under R.C.M. 1110.(2) Each special court-martial in which the ac-cu sed has waived or withdrawn appellate review under R.C.M. 1110 or in which the approved sen-tence does not include a bad-conduct discharge orconfinement for one year; and(3) Each summary court-martial.(b)
 Exception.
If the accused was found not guiltyor not guilty only by reason of lack of mental re-sponsibility of all offenses or if the convening au-thority disapproved all findings of guilty, no reviewunder this rule is required.(c)
 Disqualification.
No person may review a caseunder this rule if that person has acted in the samecase as an accuser, investigating officer, member of the court-martial, military judge, or counsel, or hasoth e rw i se a c t ed o n beh alf of th e p ro s ecu t i on o r defense.(d)
Form and content of review.
The judge advo-
II-161
R.C.M. 1112(d)

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