United States v. Lumm

23 C.M.A. 415, 1 M.J. 35, 50 C.M.R. 297, 23 USCMA 415, 1975 CMA LEXIS 777

• Court: United States Court of Military Appeals
• Decided: May 23, 1975
• Docket: No. 29,917
• Status: Published

Opinion

OPINION OF THE COURT

Per Curiam:

In proceedings before a general court-martial composed of members, the appellant was convicted of negligent homicide as well as the possession, use and transfer of heroin in violation of Articles 92 and 134, Uniform Code of Military Justice, 10 USC §§892 and 934. He was sentenced by the court to a bad-conduct discharge, confinement at hard labor for 18 months, forfeiture of $250 per month for 18 months, and reduction to pay grade E-l. The convening authority reduced the forfeitures to $200 per month for 18 months in otherwise approving the sentence as adjudged. Following summary affirmance by the United States Air Force Court of Military Review, the appellant petitioned this Court pursuant to Article 67(b)(3), UCMJ, 10 USC § 867(b)(3).

From our examination of the record, we note that the military judge, during the sentencing portion of the trial, failed to instruct the court that when voting on proposed sentences, it should begin with the lightest proposal and continue in this manner until a sentence was adopted by a concurrence of two-thirds of the members. This failure constitutes reversible error requiring a rehearing on the sentence. United States v Johnson, 18 USCMA 436, 40 CMR 148 (1969).¹

The decision of the United States Air Force Court of Military Review affirming the sentence is accordingly reversed. The record of trial is returned to the Judge Advocate General of the Air Force. A rehearing on sentence may be ordered.

Chief Judge Fletcher did not participate in the decision of this case.

1 See also United States v Wright, 20 USCMA 12, 42 CMR 204 (1970); United States v Pryor, 19 USCMA 279, 41 CMR 279 (1970).