United States v. Flint

United States Court of Military Appeals

United States v. Flint

1 M.J. 428, 1976 CMA LEXIS 7713

CourtUnited States Court of Military Appeals

DecidedJune 4, 1976

DocketNo. 30,915

StatusPublished

Cited by30 cases

This text of 1 M.J. 428 (United States v. Flint) is published on Counsel Stack Legal Research, covering United States Court of Military Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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United States v. Flint, 1 M.J. 428, 1976 CMA LEXIS 7713 (cma 1976).

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Opinion

OPINION OF THE COURT

FLETCHER, Chief Judge:

The decision of the United States Army Court of Military Review is affirmed. In affirming, we adopt the development and analysis of that court in resolving the speedy trial question,¹ except insofar as the court exempted all rehearings, rather than merely Dubay-type proceedings2 from the [429]*429Burton³ rule. A DuBay proceeding, in effect, is utilized to gather additional evidence or to resolve conflicting evidence before determining an issue presented to the appellate tribunal. A rehearing, on the other hand, is a trial de novo, to redetermine either an accused’s guilt or an appropriate sentence or both. As such, rehearings necessarily fall within the Burton mandate, and such rehearings must be held within 90 days of the date the convening authority is notified of the final decision authorizing a rehearing. Inasmuch as the offenses involved in this case all predated the Burton decision, the rule has no applicability in this instance.

Judge COOK and Judge PERRY concur.

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OPINION OF THE COURT

FLETCHER, Chief Judge:

The decision of the United States Army Court of Military Review is affirmed. In affirming, we adopt the development and analysis of that court in resolving the speedy trial question,¹ except insofar as the court exempted all rehearings, rather than merely Dubay-type proceedings2 from the [429]*429Burton³ rule. A DuBay proceeding, in effect, is utilized to gather additional evidence or to resolve conflicting evidence before determining an issue presented to the appellate tribunal. A rehearing, on the other hand, is a trial de novo, to redetermine either an accused’s guilt or an appropriate sentence or both. As such, rehearings necessarily fall within the Burton mandate, and such rehearings must be held within 90 days of the date the convening authority is notified of the final decision authorizing a rehearing. Inasmuch as the offenses involved in this case all predated the Burton decision, the rule has no applicability in this instance.

Judge COOK and Judge PERRY concur.

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1 M.J. 428, 1976 CMA LEXIS 7713, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-flint-cma-1976.

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