Current through Register Vol. 48, No. 12, March 22, 2024
a) General
1) Definition. "Other trial" means another
trial of a case in which the original proceedings were declared invalid because
of lack of jurisdiction or failure of a charge to state an offense.
2) Rehearing in Full and New or Other Trials.
In rehearings that require findings on all charges and specifications referred
to a court-martial and in new or other trials, the procedure shall be the same
as in an original trial except as otherwise provided in this Section.
3) Rehearing on Sentence Only. In a rehearing
on sentence only, the procedure shall be the same as in an original trial,
except that the portion of the procedure that ordinarily occurs after
challenges, and through the findings, is omitted, and except as otherwise
provided in this Section.
b) Contents of the Record. The contents of
the record of the original trial consisting of evidence properly admitted on
the merits relating to each offense of which the accused stands convicted but
not sentenced may be established by any party whether or not testimony so read
is otherwise admissible under Section 400.720(d) and whether or not it was
given through an interpreter.
c)
Plea. The accused at a rehearing only on sentence may not withdraw any plea of
guilty upon which findings of guilty are based. However, if that plea is found
to be improvident, the rehearing shall be suspended and the matter reported to
the authority ordering the rehearing.
d) Combined Rehearings. When a rehearing on
sentence is combined with a trial on the merits of one or more specifications
referred to the court-martial, whether or not those specifications are being
tried for the first time or reheard, the trial will proceed first on the
merits, without reference to the offenses being reheard on sentence only. After
findings on the merits are announced, the members, if any, shall be advised of
the offenses on which the rehearing on sentence has been directed. Additional
challenges for cause may be permitted, and the sentencing procedure shall be
the same as at an original trial, except as otherwise provided in this Section.
A single sentence shall be adjudged for all offenses.
e) Composition
1) Members. No member of the court-martial
that previously heard the case may sit as a member of the court-martial at any
rehearing, new trial or other trial of the same case.
2) Military Judge. The military judge at a
rehearing may be the same military judge who presided over a previous trial of
the same case. The existence or absence of a request for trial by military
judge alone at a previous hearing shall have no effect on the composition of a
court-martial on rehearing.
3)
Accused's Election. The accused at a rehearing or new or other trial shall have
the same right to request enlisted members or trial by military judge alone as
the accused would have at an original trial.
f) Examination of Record of Former
Proceedings. No member may, upon a rehearing or upon a new or other trial,
examine the record of any former proceedings in the same case except:
1) When permitted to do so by the military
judge after those matters have been received in evidence; or
2) That the president of a special
court-martial without a military judge may examine that part of the record of
former proceedings that relates to errors committed at the former proceedings
when necessary to decide the admissibility of offered evidence or other
questions of law, and that part of the record may be read to the members when
necessary for them to consider a matter, subject to objection by any
member
g) Sentence
Limitations
1) General. Sentences at
rehearings, new trials or other trials shall be adjudged within the limitations
set forth in Code Sections 55 through 58, except as otherwise provided in
subsection (g)(2). Offenses on which a rehearing, new trial or other trial has
been ordered shall not be the basis for an approved sentence in excess of, or
more severe than, the sentence ultimately approved by the convening or higher
authority following the previous trial or hearing, unless the sentence
prescribed for the offense is mandatory. When a rehearing or sentencing is
combined with trial on new charges, the maximum punishment that may be approved
by the convening authority shall be the maximum punishment under Code Sections
55 through 58 for the offenses being reheard (except as otherwise provided in
subsection (g)(2)), plus the total maximum punishment under Code Sections 55
through 58 for any new charges of which the accused has been found guilty. In
the case of an "other trial", no sentence limitations apply if the original
trial was invalid because a summary or special court-martial improperly tried
an offense involving mandatory punishment or otherwise considered
capital.
2) Plea Agreement. If,
after the earlier court martial, the sentence was approved in accordance with a
plea agreement and at the rehearing the accused fails to comply with the
pretrial agreement, by failing to enter a plea of guilty or otherwise, the
approved sentence resulting at a rehearing of the affected charges and
specifications may include any otherwise lawful punishment not in excess of, or
more serious than, lawfully adjudged at the earlier court-martial.