§ 44-866 — Military Court of Appeals for state military forces.

Oklahoma § 44-866

• Jurisdiction: Oklahoma
• Title 44: Militia

Text

ARTICLE 66. Military Court of Appeals for state military forces. A. Military Court of Appeals. There is hereby established a Military Court of Appeals for the state military forces of the State of Oklahoma. The Military Court of Appeals shall be a court of record and except as provided in Section 867 of this title (Article 67), the appellate jurisdiction of the Military Court of Appeals shall be exclusive in all courts-martial cases convened by state military forces regardless of whether a court-martial was conducted within or without the physical boundaries of the State of Oklahoma. B. Composition and method of appointment. The Military Court of Appeals shall be composed of one panel of not less than three appellate military judges. At the time the Military Court of Appeals is initially constituted and each time thereafter when a vacancy shall occur or is certain to occur on the Court, the State Judge Advocate shall choose and submit to the Governor at least one nominee for a vacant seat, certified by the State Judge Advocate as qualified, by reason of education, training, experience, and judicial temperament, for duty as an appellate military judge. Prior to submission of a nominee to the Governor, the nominee shall have previously notified the State Judge Advocate in writing that he or she will serve as an appellate military judge if appointed. The Governor shall appoint one nominee to fill the vacancy, but if the Governor fails to do so within sixty (60) days after the State Judge Advocate submits the nominee to the Governor or the Governor does not affirmatively reject in writing the nominee so submitted, the State Judge Advocate shall appoint one nominee, the appointment to be certified by the Secretary of State. No person so nominated and appointed by the Governor or by the State Judge Advocate shall take his or her seat on the Military Court of Appeals without first receiving the approbation of the Senate through advice and consent; provided that, in the case of any vacancy that occurs while the Legislature is not in regular session within the meaning of Section 26 of Article V of the Oklahoma Constitution, the Governor, or the State Judge Advocate as provided in this subsection, shall appoint a person who satisfies the requirements established in subsection C of this section to serve as an appellate military judge. If the interim nomination of the appellate military judge is not approved by the Senate during the first regular session following its submission, it shall be deemed rejected. No person shall be nominated to serve as a member of the Military Court of Appeals who is presently employed by the Oklahoma Military Department, either in a full-time or part-time capacity, nor shall any person employed as a federal technician, as defined in Title 32 of the United States Code, be nominated to serve as a member of the Military Court of Appeals. C. Qualifications. An appellate military judge who is appointed to the Military Court of Appeals shall be a licensed practicing attorney or judge of a court of record, or both, in Oklahoma for one (1) year preceding his or her appointment and shall continue to be a duly licensed attorney while in office to be eligible to hold the office. No appellate military judge shall be appointed to the Military Court of Appeals who did not previously serve as a judge advocate in any department of the Armed Forces of the United States, to include reserve components of the same. The Military Court of Appeals shall include at least one appellate military judge who previously served in the United States Army or a reserve component of the same. The Military Court of Appeals shall include at least one appellate military judge who previously served in the United States Air Force or a reserve component of the same. D. Term of office and causes for removal or retirement. Each appellate military judge appointed pursuant to this section shall, unless removed for cause, serve out the term for which he or she is appointed. Appellate military judges appointed pursuant to this section shall serve for fixed terms of office of appropriate minimum periods which shall be prescribed by regulations promulgated by the Adjutant General. The appellate military judges of the Military Court of Appeals, exercising judicial power under the provisions of the Oklahoma Uniform Code of Military Justice, shall be subject to removal from office, or to compulsory retirement from office, by proceedings in the Court on the Judiciary, for: 1. Gross neglect of duty, corruption in office, habitual drunkenness, commission while in office of any offense involving moral turpitude, gross partiality in office, oppression in office, mental or physical disability preventing the proper performance of official duty or incompetence to perform the duties of the office; or 2. Other reasons arising from military customs and practices defined in regulations promulgated by the Adjutant General. E. Compensation. Appellate military judges shall receive compensation calculated on the basis of the current basic pay received by a member in active federal service at the grade of O-6 with twenty (20) years of time in service. The Adjutant General shall promulgate regulations establishing the method of calculating compensation for less than full-time service by members of the Military Court of Appeals. Appellate military judges may be paid such actual and necessary expenses as may be provided for in regulations promulgated by the Adjutant General. F. Review. 1. Appeals by accused. The Military Court of Appeals shall have jurisdiction over a timely appeal from the judgment of a court- martial, entered into the record under Section 860C of this title (Article 60C), as follows: a. on appeal by the accused in a case in which the sentence extends to confinement for more than six (6) months and the case is not subject to automatic review under paragraph 3 of this subsection, b. on appeal by the accused in a case in which the government previously filed an appeal under Section 862 of this title (Article 62), c. on appeal by the accused in a case that the State Judge Advocate has sent to the Military Court of Appeals for review of the sentence under subsection C of Section 856 of this title (Article 56, subsection C), d. in a case in which the accused filed an application for review with the Court under subparagraph b of paragraph 1 of subsection D of Section 869 of this title (Article 69, subsection D, paragraph 1, subparagraph b) and the application has been granted by the Court. 2. Review of certain sentences. The Military Court of Appeals shall have jurisdiction over all cases that the State Judge Advocate orders sent to the Court for review under subsection C of Section 856 of this title (Article 56, subsection C). 3. Automatic review. The Military Court of Appeals shall have jurisdiction over a court-martial in which the judgment entered into the record under Section 860C of this title (Article 60C) includes a sentence of dismissal of a commissioned officer, cadet, dishonorable discharge or bad-conduct discharge, or confinement for two (2) years or more. G. Timeliness. An appeal under paragraph 1 of subsection F of this section is timely if it is filed as follows: 1. In the case of an appeal by the accused under subparagraph a or b of paragraph 1 of subsection F of this section, if filed before the later of: a. the end of the ninety-day period beginning on the date the accused is provided notice of appellate rights under subsection C of Section 865 of this title (Article 65, subsection C), or b. the date set by the Military Court of Appeals by rule or order; and 2. In the case of an appeal by the accused under paragraph 1 of subsection C of Section 865 of this title (Article 65, subsection C, paragraph 1), if filed before the later of: a. the end of the ninety-day period beginning on the date the accused is notified that the application for review has been granted by letter placed in the United States mail for delivery by first-class certified mail to the accused at an address provided by the accused or, if no such address has been provided by the accused, at the latest address listed for the accused in his or her official service record, or b. the date set by the Military Court of Appeals by rule or order. H. Duties. 1. Cases appealed by accused. In any case before the Military Court of Appeals under subsection F of this section, the Court may act only with respect to the findings and sentence as entered into the record under Section 860C of this title (Article 60C). The Court may affirm only such findings of guilty, and the sentence or such part or amount of the sentence, as the Court finds correct on the basis of applicable law. 2. Error or excessive delay. In any case before the Military Court of Appeals under subsection F of this section, the Court may provide appropriate relief if the accused demonstrates error or excessive delay in the processing of the court-martial after the judgment was entered into the record under Section 860C of this title (Article 60C). I. Consideration of appeal of sentence by the State of Oklahoma. 1. In general. In considering a sentence on appeal or review as provided in subsection C of Section 856 of this title (Article 56, subsection C), the Military Court of Appeals may consider: a. whether the sentence violates the law, and b. whether the sentence is plainly unreasonable. 2. Record on appeal or review. In an appeal or review under this subsection or subsection C of Section 856 of this title (Article 56, subsection C), the record on appeal or review shall consist of: a. any portion of the record in the case that is designated as pertinent by either of the parties, b. the information submitted during the sentencing proceeding, and c. any information required by regulations promulgated by the Adjutant General or by rule or order of the Military Court of Appeals. J. Limits of authority. 1. Set aside of findings. a. In general. If the Military Court of Appeals sets aside the findings, the Court: (1) may affirm any lesser included offense, and (2) may, except when prohibited by Section 844 of this title (Article 44), order a rehearing. b. Dismissal when no rehearing ordered. If the Military Court of Appeals sets aside the findings and does not order a rehearing, the Court shall order that the charges be dismissed. c. Dismissal when rehearing impracticable. If the Military Court of Appeals orders a rehearing on a charge and the convening authority finds a rehearing impracticable, the convening authority may dismiss the charge. 2. Set aside of sentence. If the Military Court of Appeals sets aside the sentence, the Court may: a. modify the sentence to a lesser sentence, or b. order a rehearing. 3. Additional proceedings. If the Military Court of Appeals determines that additional proceedings are warranted, the Court may order a hearing as may be necessary to address a substantial issue, subject to such limitations as the Court may direct and under such regulations as the Adjutant General may prescribe. K. Action in accordance with decisions of courts. The State Judge Advocate shall, unless there is to be further action by the Governor, the Adjutant General, or the Oklahoma Court of Criminal Appeals, instruct the appropriate authority to take action in accordance with the decision of the Military Court of Appeals. L. Rules of procedure and designation of chief judge. The State Judge Advocate shall prescribe uniform rules of procedure for the Military Court of Appeals which shall be published as a military publication and shall meet periodically to formulate policies and procedure in regard to review of court-martial cases in the office of the State Judge Advocate and by the Military Court of Appeals. The State Judge Advocate shall designate as chief judge one of the appellate military judges of the Military Court of Appeals. M. Prohibition on evaluation of other members of courts. No member of the Military Court of Appeals shall be required, or on his or her own initiative be permitted, to prepare, approve, disapprove, review, or submit, with respect to any other member of the Military Court of Appeals, an effectiveness, fitness, or efficiency report, or any other report or document used in whole or in part for the purpose of determining whether a member of the state military forces is qualified to be advanced in grade, or in determining the assignment or transfer of a member of the state military forces, or in determining whether a member of the state military forces should be retained as a member of the state military forces. N. Ineligibility of members of courts to review records of cases involving certain prior member service. No member of the Military Court of Appeals shall be eligible to review the record of any trial if such member served as investigating officer in the case or served as a member of the court-martial before which such trial was conducted, or served as military trial judge, trial or defense counsel, or reviewing officer of such trial. No member of the Military Court of Appeals shall be eligible to review the record of any trial if such member served as an Assistant Attorney General, district attorney, assistant district attorney or municipal prosecutor who determined or participated in the determination of whether to prosecute a nonmilitary offense when the act or omission in question could have violated both the Oklahoma Uniform Code of Military Justice and state or local criminal laws.

Legislative History

Added by Laws 2019, c. 408, § 81, eff. Oct. 1, 2019. Amended by Laws 2021, c. 12, § 22, emerg. eff. April 13, 2021.