United States v. Kaminski

32 M.J. 808, 1990 CMR LEXIS 1651

• Court: U.S. Navy-Marine Corps Court of Military Review
• Decided: December 7, 1990
• Docket: NMCM Nos. 892722, 892480, 893970, 893287, 891536, 892460, 893574, 894230, 900509, 893825, 894226, 892501, 894228, 892608, 894229, 893548, 893352, 892455, 900381, 884991, 893353, 893657 and 893272
• Status: Published

Opinion

ORDER

Each of the above-captioned cases contains a waiver of appellate review but was, nonetheless, forwarded for appellate review pursuant to Article 66, Uniform Code of Military Justice, 10 U.S.C. § 866, and Rule for Courts-Martial (R.C.M.) 1203, Manual for Courts-Martial, United States, 1984, because the waiver of appellate review was deemed ineffective by reason of having been filed before the accused or defense counsel was served with a copy of the action of the convening authority, in presumptive violation of R.C.M. 1110(f)(1).

Although the phraseology of R.C.M. 1110(f), as a whole, appears to be restrictive, we are unable to discern any intent on the part of the drafters to restrict the availability of waivers of appellate review. The “window” apparently established by R.C.M. 1110(f) results from what the drafters must have considered a logical opening on the front end—since, until the initial action is taken and published, no case can be positively identified as subject to appellate review—and a closing on the back end set for administrative purposes to allow cases to be forwarded by convening authorities within a reasonable time. Had the intent been to create technical barriers to waiver of appellate review, surely a succeeding right to withdrawal of appellate review would not have been provided.

We, therefore, hold that any waiver of appellate review filed before the accused or defense counsel is served with a copy of the initial action is deemed filed as of the day on which the accused or defense counsel is served with a copy of the initial action, and that such a waiver, if otherwise properly executed and filed, is valid and effective. It follows that, with respect to each of the above-captioned cases, appellate review has been waived, and that this Court is without jurisdiction to review it.

It is, therefore, by the Court, this 7th day of December, 1990,

ORDERED:

That each of the above-captioned cases be, and the same is hereby, returned to the Judge Advocate General of the Navy for review by a judge advocate pursuant to Article 64, Uniform Code of Military Justice, and R.C.M. 1112.