United States v. Banks

7 M.J. 92, 1979 CMA LEXIS 10384

• Court: United States Court of Military Appeals
• Decided: June 18, 1979
• Docket: No. 33,575; SPCM 12252
• Status: Published

Opinions

Opinion of the Court

PERRY, Judge:

The Judge Advocate General of the Army has certified for review ¹ the correctness of the decision of the United States Army Court of Military Review, dismissing the charges of larceny as well as assault and battery,² and vacating the findings of guilty and the sentence thereon. The decision of the Court of Military Review was based upon the Government’s confession of error and tacit admission that no extraordinary circumstances prevented completion of the review and action by the convening authority prior to expiration of 90 days after the finding of guilty, as required by Dunlap v. Convening Authority, 23 U.S.C.M.A. 135, 48 C.M.R. 751 (1974). The Court of Military Review held:

Because appellant was in post-trial confinement for 91 days before the convening authority took action on this case, and the government counsel has been unable to meet its “ ‘heavy burden ... to show diligence ... the charges should be dismissed.’ ” Dunlap v. Convening Authority, 23 U.S.C.M.A. 135, 138, 48 C.M.R. 751, 754 (1974).

*

The findings of guilty and the sentence are set aside and the charges are dismissed.

In the question certified to us by the Judge Advocate General, we are asked to decide whether the rule established in Dunlap v. Convening Authority, supra, required automatic dismissal of charges in this case “where the accused received a fair trial free from error, was found guilty beyond a reasonable doubt and where the delay of 91 days in the review of the conviction by the convening authority caused him to suffer absolutely no prejudice.” The certified question expresses the frustration of the services over the inflexibility of the Dunlap rule. However, the Court of Military Review was correct in its reading of the Dunlap requirement. Upon full examination of the Uniform Code of Military Justice; the decisions of this Court preceding announcement of Dunlap v. Convening Authority, supra; and with deference to the former members of this Court who formulated the Dunlap requirement, inflexible application of the rule to cases such as are included in the certified question shall not be required from and after the date of this decision.

No useful purpose would be served by reviewing the many cases and the circumstances which convinced the Dunlap Court concerning the need for the rule announced therein. It will suffice to note that Dunlap came in response to a problem which frequently manifested itself where the convening authority delayed his final action. See generally United States v. Jefferson, 22 U.S.C.M.A. 554, 48 C.M.R. 39 (1973); United States v. Gray, 22 U.S.C.M.A. 443, 47 C.M.R. 484 (1973); United States v. Timmons, 22 U.S.C.M.A. 226, 46 C.M.R. 226 (1973); United States v. Wheeler, 21 U.S.C.M.A. 468, 45 C.M.R. 242 (1972); United States v. Whitmire, 21 U.S.C.M.A. 268, 45 C.M.R. 42 (1972); United States v. Davis, 20 U.S.C.M.A. 541, 43 C.M.R. 381 (1971); United States v. Prater, 20 U.S.C.M.A. 339, 43 C.M.R. 179 (1971). However, convicted service persons now enjoy protections which had not been developed when Dunlap was decided. For example, in United States v. Palenius, 2 M.J. 86 (C.M.A.1977), we announced duties on the part of the trial defense attorney which are designed to insure a continuous, uninterrupted representation of the convicted accused service person. Performance of those functions may well remove the causes which concerned the Dunlap Court. And in United States v. Brownd, 6 M.J. 338 (C.M.A.1979) we announced standards by which applications for deferment of sentence are to be judged in appropriate cases. Thus the serviceman awaiting final action by the convening authority may avail himself of remedies during the pendency of review which were not clear when Dunlap was decided.

With respect to the instant case, we answer the certified question in the affirmative.³ Dunlap v. Convening Authority, supra. However, in cases tried subsequent to this opinion, applications for relief because of delay of final action by the convening authority will be tested for prejudice. See United States v. Gray, 22 U.S.C.M.A. 443, 47 C.M.R. 484 (1973).

The decision of the United States Army Court of Military Review is affirmed.

Chief Judge FLETCHER concurs.

1 . Article 67(b)(2), Uniform Code of Military Justice, 10 U.S.C. § 867(b)(2).

2 . In violation of Articles 121 and 128, UCMJ, 10 U.S.C. §§ 921 and 928 respectively.

Government appellate counsel confess the error in this case. However, they urge that the charges should not be dismissed as the appellant has suffered no prejudice. The government’s argument has practical merit but unfortunately it is not backed with the force of the present law. See Dunlap, supra.

3 . The only vehicle by which review at this level may be accomplished of a case disposed of by a Court of Military Review adverse to the Government is where the case is ordered sent to us by a Judge Advocate General. Article 67(b)(2), UCMJ, 10 U.S.C. § 867(b)(2). Even then, our review “need be taken only with respect to the issues raised by” the Judge Advocate General. Article 67(d), UCMJ, 10 U.S.C. § 867(d). Of course, the Court may specify an issue in such a case not raised by the Judge Advocate General, just as it may in a case before the Court upon petition of an accused. However, in a case before the Court in a posture as is this case — solely upon a question certified to us by a Judge Advocate General — any relief prayed for by the Government must be through the certified question. Thus, in a case such as this, where the Judge Advocate General asks whether the Court of Military Review correctly applied the controlling law in the appellant’s favor, an affirmative answer to the question terminates any legal basis for Government relief and any announced change in the law must be prospective.