United States v. Moreno

U.S. Army Court of Military Review

United States v. Moreno

24 M.J. 752, 1987 CMR LEXIS 435

CourtU.S. Army Court of Military Review

DecidedJune 18, 1987

DocketCM 446698

StatusPublished

This text of 24 M.J. 752 (United States v. Moreno) is published on Counsel Stack Legal Research, covering U.S. Army Court of Military Review primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

United States v. Moreno, 24 M.J. 752, 1987 CMR LEXIS 435 (usarmymilrev 1987).

Pincite

Opinion

OPINION OF THE COURT ON FURTHER REVIEW

De GIULIO, Judge:

Appellant was tried by general court-martial composed of officers and enlisted members. Contrary to his pleas, he was found guilty of involuntary manslaughter, [753]*753unlawfully leaving the scene of an accident and reckless driving. He was sentenced to a bad-conduct discharge, confinement for one year, forfeiture of $400.00 pay per month for twelve months and reduction to Private E-l. On 7 October 1985, this court found that the court-martial lacked jurisdiction, set aside the findings and sentence and authorized an “other trial.”¹ The letter returning the case to the convening authority was dated 31 October 1985. On 18, 19, and 20 June 1986, appellant was tried by general court-martial, the “other trial” authorized by this court. Pursuant to his plea of guilty, he was found guilty of negligent homicide only. He was sentenced to confinement for one year, forfeiture of $400.00 pay per month for twelve months and reduction to Private E-l. In compliance with a pretrial agreement, the convening authority approved confinement for 288 days and reduction to Private E-l.

At trial appellant moved to dismiss the charges because appellant was not tried within 120 days in violation of the speedy trial rules set forth in Rule for Courts-Martial 707(a). Manual for Courts-Martial, United States, 1984, Rule for Courts-Martial [hereinafter cited as R.C.M.] 707(a).² The military judge ruled that R.C.M. 707 applied to this case but held that accountability for purposes of R.C.M. 707 began on the date appellant was notified of the “other trial.” He found this date within the 120 days of R.C.M. 707(a) and denied the motion.

Appellant alleges that the military judge erred in ruling that appellant had not been denied a speedy trial. We agree with appellant.

The United States Court of Military Appeals established the rule that accountability for Burton³ speedy trial purposes in rehearing cases begins when the convening authority is notified of the decision of this court. United States v. Flint, 1 M.J. 428, 429 (C.M.A.1976). This court has applied the 120-day speedy trial rule of R.C.M. 707(a) and the accountability rule of Flint to a rehearing case where an appellant was not confined. United States v. McFarlin, 24 M.J. 631, 635 (A.C.M.R.1987).⁴ These rules have also been applied to a new trial. United States v. Rivera-Berrios, 24 M.J. 679, 679 (A.C.M.R.1987). We see no valid reason to apply a different rule to “other trials.” We hold that R.C.M. 707 applies to “other trials.” In the case sub judice we find appellant was brought to trial 230 days the convening authority was notified of this court’s decision, far in excess of the 120-day limitation of R.C.M. 707(a). We hold, therefore, appellant was denied a speedy trial.

Accordingly, the findings of guilty and the sentence are set aside. The Charge and its Specification are dismissed.

Senior Judge PAULEY and Judge KUCERA concur.

Free access — add to your briefcase to read the full text and ask questions with AI

OPINION OF THE COURT ON FURTHER REVIEW

De GIULIO, Judge:

Appellant was tried by general court-martial composed of officers and enlisted members. Contrary to his pleas, he was found guilty of involuntary manslaughter, [753]*753unlawfully leaving the scene of an accident and reckless driving. He was sentenced to a bad-conduct discharge, confinement for one year, forfeiture of $400.00 pay per month for twelve months and reduction to Private E-l. On 7 October 1985, this court found that the court-martial lacked jurisdiction, set aside the findings and sentence and authorized an “other trial.”¹ The letter returning the case to the convening authority was dated 31 October 1985. On 18, 19, and 20 June 1986, appellant was tried by general court-martial, the “other trial” authorized by this court. Pursuant to his plea of guilty, he was found guilty of negligent homicide only. He was sentenced to confinement for one year, forfeiture of $400.00 pay per month for twelve months and reduction to Private E-l. In compliance with a pretrial agreement, the convening authority approved confinement for 288 days and reduction to Private E-l.

At trial appellant moved to dismiss the charges because appellant was not tried within 120 days in violation of the speedy trial rules set forth in Rule for Courts-Martial 707(a). Manual for Courts-Martial, United States, 1984, Rule for Courts-Martial [hereinafter cited as R.C.M.] 707(a).² The military judge ruled that R.C.M. 707 applied to this case but held that accountability for purposes of R.C.M. 707 began on the date appellant was notified of the “other trial.” He found this date within the 120 days of R.C.M. 707(a) and denied the motion.

Appellant alleges that the military judge erred in ruling that appellant had not been denied a speedy trial. We agree with appellant.

The United States Court of Military Appeals established the rule that accountability for Burton³ speedy trial purposes in rehearing cases begins when the convening authority is notified of the decision of this court. United States v. Flint, 1 M.J. 428, 429 (C.M.A.1976). This court has applied the 120-day speedy trial rule of R.C.M. 707(a) and the accountability rule of Flint to a rehearing case where an appellant was not confined. United States v. McFarlin, 24 M.J. 631, 635 (A.C.M.R.1987).⁴ These rules have also been applied to a new trial. United States v. Rivera-Berrios, 24 M.J. 679, 679 (A.C.M.R.1987). We see no valid reason to apply a different rule to “other trials.” We hold that R.C.M. 707 applies to “other trials.” In the case sub judice we find appellant was brought to trial 230 days the convening authority was notified of this court’s decision, far in excess of the 120-day limitation of R.C.M. 707(a). We hold, therefore, appellant was denied a speedy trial.

Accordingly, the findings of guilty and the sentence are set aside. The Charge and its Specification are dismissed.

Senior Judge PAULEY and Judge KUCERA concur.

Cite This Page — Counsel Stack

Bluebook (online)

24 M.J. 752, 1987 CMR LEXIS 435, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-moreno-usarmymilrev-1987.

Opinion

Related

Cite This Page — Counsel Stack