United States v. Malacara

71 M.J. 380, 2012 CAAF LEXIS 942

• Court: Court of Appeals for the Armed Forces
• Decided: August 10, 2012
• Docket: No. 12-0643/AF
• Status: Published

Opinion

CCA 38024. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, we note that the convening authority failed to comply with a lawful term of the pretrial agreement in that he did not dismiss with prejudice Charge III and its specifications as required by that agreement. See United States v. Smead, 68 M.J. 44, 62 (C.A.A.F. 2009). Absent the presence of any circumstances to cancel the agreement, the convening authority’s action improperly failed to give Appellant the benefit that he bargained for — dismissal with prejudice of the charge and its specifications. We will take corrective action in the interest of judicial economy where we conclude that such action is consistent with the intent of the convening authority even if the action was not specified in the convening authority’s action. See United States v. Scott, 4 M.J. 205, 206 (C.M.A. 1978). Accordingly, it is ordered that said petition for review is granted. The decision of the Air Force Court of Criminal Appeals is reversed to the extent that it approves the convening authority’s failure to dismiss with prejudice Charge III and its specifications. This charge and its specifications are dismissed with prejudice in accordance with the pretrial agreement. In all other respects, the decision below is affirmed. [See also ORDERS GRANTING PETITION FOR REVIEW this date.]