United States v. Mitchell

United States Court of Military Appeals

United States v. Mitchell

10 M.J. 220, 1981 CMA LEXIS 16695

CourtUnited States Court of Military Appeals

DecidedJanuary 26, 1981

DocketNo. 36,866; CM 437080

StatusPublished

Cited by1 cases

This text of 10 M.J. 220 (United States v. Mitchell) is published on Counsel Stack Legal Research, covering United States Court of Military Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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United States v. Mitchell, 10 M.J. 220, 1981 CMA LEXIS 16695 (cma 1981).

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OPINION

COOK, Judge:

Pursuant to accused’s pleas of guilty, a general court-martial at Fort Dix, New Jersey, convicted him of unpremeditated murder, in violation of Article 118, Uniform Code of Military Justice, 10 U.S.C. § 918, and adjudged a sentence that included a dishonorable discharge and confinement at hard labor for 25 years.

As 94 days elapsed between accused’s conviction and his immediate post-trial confinement on January 31, 1978, and the convening authority’s action on May 5, 1978, the accused contends that when the circumstances of the convening authority’s review are considered with the presumption of prejudice that attaches to action taken by the convening authority more than 90 days after the initiation of post-conviction confinement, as promulgated in Dunlap v. Convening Authority, 23 U.S.C.M.A. 135, 48 C. M.R. 751 (1974), the review of his casé was untimely and he is entitled to reversal of the conviction and dismissal of the charge. We conclude that the assignment of error lacks merit.

In United States v. Banks, 7 M.J. 92 (C.M.A.1979), the Court abrogated the Dunlap presumption, but did not deny Banks the benefit of it. Id. at 93-94. Nor did the Court deny the presumption to accused in other cases then pending in the Court on the same issue. See United States v. John[221]*221son, 7 M.J. 473 (C.M.A.1979); United States v. Mosley and United States v. Tucker, 7 M.J. 209 (C.M.A.1979); United States v. Sawyer, 7 M.J. 195 (C.M.A.1979).

At least four days of the 94-day period are excludable from the time chargeable to the Government. I am satisfied that that segment of time “resulted from inadvertent miscalculation of the suspense date for the convening authority to act,” which, in the particular circumstances of the case, excused the delay. See my opinion in United States v. Sawyer, supra at 196. My Brothers are convinced, for other reasons, that the Dunlap presumption of prejudice is inapplicable. Absent the presumption, we find no evidence of prejudice to the accused resulting from the time required by the convening authority to review the record of trial and act on the case.

The decision of the United States Army Court of Military Review is affirmed.

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OPINION

COOK, Judge:

Pursuant to accused’s pleas of guilty, a general court-martial at Fort Dix, New Jersey, convicted him of unpremeditated murder, in violation of Article 118, Uniform Code of Military Justice, 10 U.S.C. § 918, and adjudged a sentence that included a dishonorable discharge and confinement at hard labor for 25 years.

As 94 days elapsed between accused’s conviction and his immediate post-trial confinement on January 31, 1978, and the convening authority’s action on May 5, 1978, the accused contends that when the circumstances of the convening authority’s review are considered with the presumption of prejudice that attaches to action taken by the convening authority more than 90 days after the initiation of post-conviction confinement, as promulgated in Dunlap v. Convening Authority, 23 U.S.C.M.A. 135, 48 C. M.R. 751 (1974), the review of his casé was untimely and he is entitled to reversal of the conviction and dismissal of the charge. We conclude that the assignment of error lacks merit.

In United States v. Banks, 7 M.J. 92 (C.M.A.1979), the Court abrogated the Dunlap presumption, but did not deny Banks the benefit of it. Id. at 93-94. Nor did the Court deny the presumption to accused in other cases then pending in the Court on the same issue. See United States v. John[221]*221son, 7 M.J. 473 (C.M.A.1979); United States v. Mosley and United States v. Tucker, 7 M.J. 209 (C.M.A.1979); United States v. Sawyer, 7 M.J. 195 (C.M.A.1979).

At least four days of the 94-day period are excludable from the time chargeable to the Government. I am satisfied that that segment of time “resulted from inadvertent miscalculation of the suspense date for the convening authority to act,” which, in the particular circumstances of the case, excused the delay. See my opinion in United States v. Sawyer, supra at 196. My Brothers are convinced, for other reasons, that the Dunlap presumption of prejudice is inapplicable. Absent the presumption, we find no evidence of prejudice to the accused resulting from the time required by the convening authority to review the record of trial and act on the case.

The decision of the United States Army Court of Military Review is affirmed.

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10 M.J. 220, 1981 CMA LEXIS 16695, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-mitchell-cma-1981.

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