United States v. Deshazor

14 C.M.A. 667, 14 USCMA 667, 34 C.M.R. 447, 1964 CMA LEXIS 219, 1964 WL 5045

• Court: United States Court of Military Appeals
• Decided: July 2, 1964
• Docket: No. 17,530
• Status: Published

Opinions

Opinion of the Court

Quinn, Chief Judge:

A general court-martial convicted the accused of unauthorized absence and missing movement, in violation of Articles 86 and 87, Uniform Code of Military Justice, 10 USC §§ 886 and 887, respectively, and sentenced him to a bad-conduct discharge, total forfeitures, •confinement at hard labor for one year, •and reduction in rank. The law officer instructed the court-martial on the correct maximum punishment which could be adjudged, but did not inform it that the offenses found were the same for sentence purposes. See United States v Posnick, 8 USCMA 201, 24 CMR 11.

The question before us is whether the accused was prejudiced by the failure to advise the court-martial as to the number of offenses upon which the maximum sentence was predicated. The issue was considered in United States v Green, 9 USCMA 585, 26 CMR 365. It was there held that since the law officer informed the court of the correct legal maximum penalty no prejudice could result. Since the Green case, supra, is controlling, the decision of the board of review is affirmed. See also United States v Searles, 14 USCMA 643, 34 CMR 423.

Judge Kilday concurs.