United States v. Cabatic

7 M.J. 438, 1979 CMA LEXIS 8916

Opinions

Opinion of the Court

PER CURIAM:

Footnotes

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On October 3, 1974, the appellant was convicted by general court-martial of rape and robbery;¹ thereupon, he was sentenced to confinement at hard labor for 10 years, forfeiture of all pay and allowances and reduction to the lowest enlisted grade. The convening authority approved the trial results, except he reduced the period of imprisonment to 8 years. The United States Army Court of Military Review affirmed.

On August 21, 1975, this Court set aside the findings and the sentence² and authorized a rehearing. United States v. Cabatic, 23 U.S.C.M.A. 703 (1975). Such rehearing occurred on January 15, 1976, whereat the appellant moved the trial judge to dismiss the charges against him on the basis of denial of a speedy trial, viz., a speedy rehearing. The motion was denied and, in due course and pursuant to his pleas, the appellant again was convicted of rape and robbery and was sentenced to be confined for 3 years. The convening authority ap proved the findings and the sentence and the Court of Military Review affirmed. United States v. Cabatic, 2 M.J. 985 (A.C.M.R.1976).

Before this Court now, the appellant points out that in United States v. Flint, 1 M.J. 428 (C.M.A.1976), decided nearly 5 months after his rehearing, we held that, as a rehearing is a trial de novo to redetermine the accused’s guilt and/or an appropriate sentence, rehearings necessarily fell within the mandate of United States v. Burton, 21 U.S.C.M.A. 112, 44 C.M.R. 166 (1971), and thus, that rehearings must be held within 90 days of the date the convening authority is notified of the final decision authorizing a rehearing. Of course, as is apparent from the above chronology, the appellant’s rehearing date exceeded the time limit somewhat and the appellant now prays that we apply our holding in Flint and dismiss the charges of which he was convicted. We decline tó do so, believing that our holding in Flint appropriately is to be applicable only to rehearings conducted after the date of that decision, June 4, 1976.

The Court in Flint announced a new rule of procedural law, for prior to that time the law of the Court was that Articles 10 and 33 — the statutory foundation of the Burton decision — “do not directly apply to the period of time between reversal of conviction and retrial.” United States v. Blackwell, 19 U.S.C.M.A. 196, 198, 41 C.M.R. 196, 198 (1970).³ See United States v. Flint, 50 C.M.R. 865 (A.C.M.R.1975); United States v. Morrow, 49 C.M.R. 866 (N.C.M.R.1974). As the newly announced procedure did not seek “to overcome an aspect of the criminal trial that substantially impairs its truth-finding function” so as to raise “serious questions about the accuracy of guilty verdicts in past” courts-martial, see Hankerson v. North Carolina, 432 U.S. 233, 243, 97 S.Ct. 2339, 53 L.Ed.2d 306 (1977), retroactive application of it is not required. And under the analysis of Stovall v. Denno, 388 U.S. 298, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), reiterated in Daniel v. Louisiana, 420 U.S. 31, 95 S.Ct. 704, 42 L.Ed.2d 790 (1975), and followed by this Court in determining such questions,⁴ we conclude that retroactive application is not appropriate. The purpose to be served by the Flint mandate was to expedite the rehearing process and retroactive application of it would have no effect on the timeliness of rehearings already held. Further, law enforcement and judicial authorities justifiably have relied upon the law of Blackwell⁵ and practitioners in the military justice system normally ought not be expected to wager on the future direction of the law, but rather must be held to a strict enforcement of the existing law. Finally, if Flint were applied retroactively, virtually every rehearing held after the date of the Burton decision would be brought into question, and this appears to be an unnecessary adverse impact on the integrity of the system under these circumstances.

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

Judge Matthew J. Perry took final action in this case prior to his resignation as a judge of this Court pursuant to his appointment and confirmation as a United States District Judge for the District of South Carolina.

1

. Articles 120 and 122, Uniform Code of Military Justice, 10 U.S.C. §§ 920 and 922, respectively.

2

. See United States v. Holland, 23 U.S.C.M.A. 442, 50 C.M.R. 461 (1975).

3

. We note that there has been a split among the panels of the Army Court of Military Review regarding whether Flint announced any new rule at all. Compare United States v. Cabatic, 2 M.J. 985 (A.C.M.R.1976), with United States v. Avery, 2 M.J. 1004 (A.C.M.R.1976). However, even in Avery, where the court held that Flint did not establish a new rule and, thus, should be retroactively applied, the court recognized that Flint “reject[ed] the conclusion of the Court below that the rule promulgated in Burton did not apply to rehearings.” United States v. Avery, supra at 1005. This impliedly acknowledges that Flint did, indeed, announce a new rule as to rehearings. The appellant argues that this Court signalled application of Burton to rehearings as early as our decision in Kidd v. United States, 1 M.J. 302 (C.M.A.1975), decided November 14, 1975. While there is some dicta therein which might suggest such a future change, it was not an issue squarely addressed and resolved by the Court.

4

. See United States v. Mixson, 5 M.J. 236 (C.M.A.1978); United States v. Cannon, 5 M.J. 198 (C.M.A.1978); United States v. Jackson, 3 M.J. 101 (C.M.A.1977).

5

. Trial counsel, in fact, forcefully argued Blackwell as the existing law.