United States v. Gold

20 C.M.A. 60, 20 USCMA 60, 42 C.M.R. 252, 1970 CMA LEXIS 763, 1970 WL 7061

• Court: United States Court of Military Appeals
• Decided: August 21, 1970
• Docket: No. 23,085
• Status: Published

Opinion

Opinion of the Court

DARDEN, Judge:

Evidence introduced to prove the intent to desert as charged also suggested that Gold had violated brig regulations. The law officer erred, therefore, by not including appropriate limiting instructions in his presen-tencing advice to the members of this general court-martial. (United States v Mallard, 19 USCMA 457, 42 CMR 59 (1970).)

Because the appellant received the maximum sentence imposable, we cannot be sure that this instructional failure did not work to the appellant’s prejudice. The confinement has been reduced during the appellate process but had the court-imposed sentence been less, subsequent reductions probably would have resulted in a lighter sentence than the one appellant now has. Accordingly, we set aside the decision of the Court of Military Review as to sentence and return the record of trial to the Judge Advocate General of the Navy for submission to the Court of Military Review for reconsideration of the sentence. (United States v Mallard, supra; United States v March, 19 USCMA 476, 42 CMR 78 (1970).)

Chief Judge Quinn and Judge Ferguson concur.