Schmeltz v. United States

1 M.J. 273, 1976 CMA LEXIS 6025

Opinions

OPINION OF THE COURT

PER CURIAM:

By our decision in this case¹ dated April 11, 1975, we ruled that the Navy Court of Military Review did not err in holding that the condition in the petitioner’s pretrial agreement requiring him to request sentencing by military judge was valid under the circumstances of that ease. On July 23, 1975, we granted a petition for writ of error coram nobis to reexamine² our disposition of his case in light of our subsequent decision in United States v. Holland, 23 U.S.C.M.A. 442, 50 C.M.R. 461, 1 M.J. 58 (1975). In addition to the provision above referenced, the petitioner’s pretrial agreement with the convening authority contained a clause identical to that condemned in Holland. As such, a fate similar to that which befell that conviction must result here.³

Upon further examination, our earlier opinion herein is affirmed. However, based upon the principles enunciated in United States v. Holland, supra, the decision of the United States Navy Court of Military Review is reversed, and the findings and sentence are set aside. The record is returned to the Judge Advocate General of the Navy. A rehearing may be ordered.

Footnotes

1

. United States v. Schmeltz, 23 U.S.C.M.A. 377, 50 C.M.R. 83, 1 M.J. 8 (1975).

2

. Brant v. United States, 19 U.S.C.M.A. 493, 42 C.M.R. 95 (1970).

3

. There is no indication in the record whether the defense counsel’s “no further motions” statement at the second hearing, relied on so heavily by the dissenting judge, was generated by the actual lack of motions or by the restrictive provision in the newly negotiated pretrial agreement prohibiting such motions. We will not speculate. Under such circumstances, our decision in Holland is controlling.