United States v. Bolling

16 M.J. 901, 1983 CMR LEXIS 800

• Court: United States Court of Military Appeals
• Decided: August 22, 1983
• Docket: SPCM 19314
• Status: Published

Opinions

OPINION OF THE COURT

O’DONNELL, Senior Judge:

The appellant was convicted, inter alia, of two specifications of unauthorized absence (Specifications 2 and 4, Charge I), and two specifications of breach of restriction (Specifications 4 and 5, Charge III), in violation of Articles 86 and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 886 and 934 (1976). The unauthorized absence offenses were committed contemporaneously with the breach of restriction offenses.

This case is governed by United States v. Doss, 15 M.J. 409 (C.M.A.1983), and United States v. Scavincky, 15 M.J. 316 (C.M.A.1983) (summary disposition). In Doss, the Court held that two brief, unauthorized absences and two contemporaneous breaches of restriction were multiplicious for findings and dismissed the former as being included in the latter.¹ In Seavineky, which also involved an unauthorized absence and a breach of restriction, the Court dismissed the breach of restriction offense, apparently because of the protracted nature of the absence.

Unlike Judge Foreman, we have no difficulty applying Doss and Seavineky. We can safely assume that the Court of Military Appeals is familiar with Article 59 of the Code, 10 U.S.C. § 859 and that they found prejudice in those cases.² There is authority for the proposition that it is unfair for an accused to stand convicted of the same offense twice, whether at the same or separate trials. United States v. Huggins, 12 M.J. 657, 660 (A.C.M.R.1981) (O’Donnell, J., concurring), pet. granted, 15 M.J. 378 (C.M.A.1983). This would include lesser included offenses as well as duplicative offenses. Accordingly, the military judge should have dismissed the lesser offense in this case and his failure to do so may be remedied on appellate review, notwithstanding the failure of the defense to object at trial. Id.3

The Government, it is apparent, does not like dismissing multiplicious charges. Indeed, it asserts in its brief that Doss is not even applicable in the instant case. Moreover, it contends that even if Doss is somehow applicable, the judge did not err in failing to follow it. Like it or not, Doss represents the law and in the words of the ancient maxim: “Sic biscuitus disintegrat.”

The findings of guilty of Specifications 4 and 5 of Charge III are set aside and those charges are dismissed. The remaining findings of guilty and the sentence are affirmed.

Judge WERNER concurs.

1 . In arriving at its conclusion in United States v. Doss, the Court cited United States v. Modesett, 9 U.S.C.M.A. 152, 25 C.M.R. 414 (1958). Judge Foreman quite correctly notes that the Court in Modesett, after finding the charges to be multiplicious as one was included in the other, nevertheless took remedial action only with respect to the sentence. This need not deter us, since at that time the concept of multiplicity for findings had not yet evolved. The concept developed in such cases as United States v. Drexier, 9 U.S.C.M.A. 405, 26 C.M.R. 185 (1958), and United States v. Williams, 18 U.S.C.M.A. 78, 39 C.M.R. 78 (1968).

2 . Cf. United States v. Montgomery, 20 U.S.C.M.A. 35, 42 C.M.R. 227 (1970), where the Court held in essence that a trial judge is presumed to know the law and to have followed it.

3 . The government contends that the appellant waived the error by failing to raise it in the rebuttal to the post-trial review, citing United States v. Goode, 1 M.J. 3 (C.M.A.1975). Goode, it need hardly be pointed out, relieves the government of the consequences of errors committed in the post-trial review, not at trial.