United States v. Flemings

8 C.M.A. 729, 8 USCMA 729, 25 C.M.R. 233, 1958 CMA LEXIS 681, 1958 WL 3124

• Court: United States Court of Military Appeals
• Decided: February 21, 1958
• Docket: No. 10,888
• Status: Published

Opinion

Opinion of the Court

PER CURIAM:

A Marine Corps special court-martial found the accused guilty of several offenses under the Uniform Code of Military Justice. The accused had entered a plea of guilty as to some offenses and not guilty as to others. The staff legal officer, in his post-trial review of the record, summarized the evidence presented at trial as to those offenses to which the accused had pleaded not guilty. The reviewer, however, failed to express an opinion as to the factual and legal sufficiency of the evidence. This was error. A post-trial review must do more than summarize; it must also advise. United States v Withrow, 8 USCMA 728, 25 CMR 232, paragraph 85b, Manual for Courts-Martial, United States, 1951.

The error in the review, however, relates only to those offenses to which the accused pleaded not guilty. Accordingly, we may dispose of the case by returning the record to the board of review which may, in its discretion, set aside the findings of guilt of specification 2, Charge I, and Charge III and the specification thereunder, and reassess an appropriate sentence on the basis of the remaining approved findings of guilt or may order further proceedings pursuant to Articles 61 and 64 of the Code, supra. Cf. United States v Katzenberger, 8 USCMA 497, 24 CMR 307. It is so ordered.