United States v. Kohl

26 M.J. 919, 1988 CMR LEXIS 467, 1988 WL 82095

• Court: U.S. Navy-Marine Corps Court of Military Review
• Decided: July 11, 1988
• Docket: NMCM 87 3728
• Status: Published

Opinions

RILEY, Senior Judge:

After the appellant lost a motion to dismiss all charges due to the lack of a speedy trial, he entered a conditional plea of guilty pursuant to Rule 910(a)(2) of the Rules for Courts-Martial. The military judge found him guilty of several drug related offenses and imposed a sentence of a dishonorable discharge, confinement for two-and-one-half years, and forfeiture of all pay and allowances. The convening authority approved the sentence, but suspended the last six months of confinement in accordance with the terms of the pretrial agreement.

The speedy-trial motion was predicated on the fact that the appellant had been in continuous pretrial confinement for 93 days as of the date of trial. The facts also reveal that on the 69th day of confinement the trial counsel and the trial defense counsel mutually agreed on a trial date which would be the 92nd day of confinement. For some unknown reason the actual trial was held one day later. Additionally, the charges were not even referred to trial until the appellant had served 91 days of pretrial confinement. There is no evidence that the appellant requested a delay or continuance and certainly none was granted by the convening authority or the military judge.

Appellate defense counsel contends that the government must be held strictly accountable for all delay, citing United States v. Carlisle, 25 M.J. 426 (C.M.A.1988) as controlling. The government concurs. Reluctantly, we agree. The rationale for invoking the 120 day rule¹ in the Carlisle case is equally applicable to the present situation involving pretrial confinement in excess of 90 days. See Rule for Courts-Martial 707(d).

This case serves as a good example of the high price that, on occasion, the military justice system must pay in order to promote the orderly processing of those cases to follow, and the overall improvement of the military justice system. It should also serve as a vehicle to heighten trial and defense counsels’ awareness of the sharp, diametrically opposed interests and duties owed to their respective clients, particularly in those situations where both counsel work in close proximity, enjoy professional camaraderie, and report to the same commanding officer.

The findings of guilty and the sentence are set aside. All charges and specifications are dismissed.

Judge RUBENS concurs.

1 . Rule for Courts-Martial 707(a).