United States v. Spiva

10 C.M.A. 307, 10 USCMA 307, 27 C.M.R. 381, 1959 CMA LEXIS 327, 1959 WL 3633

• Court: United States Court of Military Appeals
• Decided: March 27, 1959
• Docket: No. 12,447
• Status: Published

Opinions

Opinion of the Court

Robert E. Quinn, Chief Judge:

A special court-martial convicted the accused of dereliction of duty as a security sentry and larceny of a boat propeller of a value of $200.00, in violation, respectively, of Articles 92 and 121, Uniform Code of Military Justice, 10 USC §§ 892, 921. Although the Table of Maximum Punishments for these offenses carries confinement for five and one-half years, a special court-martial cannot impose confinement in excess of six months. Article 19, Uniform Code, supra, 10 USC § 819. However, the president of the court, without objection by either trial or defense counsel, neither of whom was a lawyer, instructed the court-martial that the maximum sentence included confinement at hard labor for nine months. This, of course, was error.

On reviewing the record of trial, the force legal officer of the supervisory general court-martial authority recommended that the findings of guilty of the dereliction of duty offense be set aside and that the confinement and forfeiture portions of the sentence be reduced from three to two months. The supervisory authority approved the recommendation as to the findings but held that the sentence “adjudged by the court and approved by the convening authority ... is entirely appropriate . . . notwithstanding the disapproval of the findings of guilty as to Charge II.” No mention was made of the instructional error. It is apparent from the review and the action that the supervisory authority determined the appropriateness of the sentence on the basis of the single .remaining offense and the surrounding circumstances.

Several cases involving somewhat similar situations have been before us. Although a majority of the Court did not agree on the reasons, it concluded the error did not have a prejudicial effect upon the final sentence which the accused was required to serve. United States v Reid, 10 USCMA 71, 27 CMR 145; United States v Reiner, 8 USCMA 101, 23 CMR 325. Appellate defense counsel in this case concedes that, in view of the nature of the offense, the sentence adjudged by the court-martial, and the re-evaluation thereof by the supervisory authority, “any possibility of prejudice . . . is de minimus [sic].” We agree. See United States v Granger, 9 USCMA 719, 26 CMR 499; United States v Helfrick, 9 USCMA 221, 25 CMR 483. Accordingly, the decision of the board of review is affirmed.

Judge Latimer concurs.