United States v. Anderson

50 M.J. 447, 1999 CAAF LEXIS 1028

• Court: Court of Appeals for the Armed Forces
• Decided: June 29, 1999
• Docket: 98-0092/MC
• Status: Published

Opinions

Judge CRAWFORD

delivered the opinion of the Court.

Contrary to his pleas, appellant was convicted in a general court-martial with officer and enlisted members, of sodomy and indecent acts with a child, W. The convening authority approved the sentence of a dishonorable discharge, 10 years’ confinement, total forfeitures, and reduction to the lowest enlisted grade. The Court of Criminal Appeals affirmed the findings and sentence. 47 MJ 576 (1997). We granted review of the following issue:

WHETHER THE LOWER COURT ERRED WHEN IT HELD THAT THE MILITARY JUDGE DID NOT ERR IN DENYING THE DEFENSE MOTION TO DISMISS THE CHARGES FOR LACK OF A SPEEDY TRIAL.

FACTS

On October 28, 1993, appellant was placed in pretrial confinement after he admitted fondling W. He was released from pretrial confinement on November 2, 1993, and placed on restriction. The indecency charge was preferred on November 8, 1993. The restriction was relaxed to allow unlimited visits from appellant’s wife on February 2, 1994, and then again on February 11, 1994. But appellant remained in restrictive status until a trial on the merits. On August 5, 1994, the original charge was dismissed when W disclosed the sodomy offense for the first time. At that time, defense counsel notified the Government that the defense would not object to additional charges being preferred. When the convening authority was notified, the original charges were withdrawn and dismissed without prejudice to allow an additional investigation into the sodomy allegations.

At trial, the defense argued only that the charges should be dismissed because of a violation of RCM 707, Manual for Courts-Martial, United States (1994 ed.). In analyzing this argument, our standard of review is whether the judge abused his discretion in failing to dismiss the charges. United States v. Hatfield, 44 MJ 22 (1996).

RCM 707(a) provides for a 120-day speedy-trial rule. The inception of the 120-day period is on the earlier date of “preferral of charges” or “imposition of restraint under R.C.M. 304(a)(2)-(4).”

RCM 707(b)(3) provides for termination of the 120-day speedy trial clock upon dismissal or upon release from restraint. The 120-day clock also stops ticking when “the accused is brought to trial ... [meaning] arraignment under R.C.M. 904.” RCM 707(b)(1). However, “[i]f charges are dismissed ... a new 120-day time period under this rule shall begin on the date of dismissal....” RCM 707(b)(3)(A). Certain periods are excludable in determining the 120 days, including “delays approved by a military judge or the convening authority.” RCM 707(c).¹

One hundred twenty-three days elapsed from the date appellant’s restraint began until his first arraignment on February 28, 1994. However, appellant concedes the judge correctly excluded 70 days of that time, from November 17,1993 to January 26, 1994. Final Brief at 4. Thus, as to the first period of time, there is no violation of the 120-day rule.

As to the second time period, under RCM 707(b)(3)(A), once charges are dismissed, absent a subterfuge, the speedy-trial clock is restarted. In this instance, the speedy-trial clock was restarted on August 5, 1994. The new clock started on that date, when appellant was still restricted, because charges were not preferred until August 10, 1994. This second speedy-trial clock stopped on the second arraignment, on October 31, 1994. This arraignment took place within 120 days of the dismissal of the original charges and, thus, the delay did not violate the 120-day rule.

We reject appellant’s argument that the speedy-trial clock should not be reset after dismissal of the charges. In United States v. Ruffin, 48 MJ 211, 212 (1998), we stated:

If the release is for a significant period, the 120-day speedy trial period is reset to begin upon preferral of charges or reimpo-sition of restraint, whichever comes first. If the release is not for a significant period, the release is not taken into account, and the beginning of the 120-day speedy trial period is not reset.

In Ruffin, the charges were never dismissed, but were initially preferred one day after Ruffin had been released from restraint. In contrast, in this case, the charges were preferred, dismissed without prejudice, and then re-preferred. Ruffin was based on RCM 707(b)(3)(B); this case turns on RCM 707(b)(3)(A).

Even though there is continued restraint, a dismissal of the charges stops the 120-day clock and a new 120-day clock is started.² Therefore, we hold that as to both periods of time, the trial commenced well within the 120-day period when one provides for the legitimate exclusions.

Additionally, we have considered the petition for new trial and deny it.

The decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.

1 . In United States v. Thompson, 46 MJ 472, 476 (1997), we reserved for another day the question whether the Article 32 officer "stands in the stead of the convening authority when acting on a request for delay.”

2 . Accordingly, we reject the Government’s concession that it violated RCM 707 as to indecent-acts charge. See Answer to Final Brief at 4.