10 U.S.C. § 863 — Art. 63. Rehearings

Page 784 TITLE 10—ARMED FORCES § 863 (F) A refusal by the military judge to en- force an order described in subparagraph (E) that has previously been issued by appropriate authority. (G) An order or ruling of the military judge entering a finding of not guilty with respect to a charge or specification following the return of a finding of guilty by the members. (2)(A) An appeal of an order or ruling may not be taken unless the trial counsel provides the military judge with written notice of appeal from the order or ruling within 72 hours of the order or ruling. Such notice shall include a cer- tification by the trial counsel that the appeal is not taken for the purpose of delay and (if the order or ruling appealed is one which excludes evidence) that the evidence excluded is substan- tial proof of a fact material in the proceeding. (B) An appeal of an order or ruling may not be taken when prohibited by section 844 of this title (article 44). (3) An appeal under this section shall be dili- gently prosecuted by appellate Government counsel. (b) An appeal under this section shall be for- warded by a means prescribed under regulations of the President directly to the Court of Crimi- nal Appeals and shall, whenever practicable, have priority over all other proceedings before that court. In ruling on an appeal under this sec- tion, the Court of Criminal Appeals may act only with respect to matters of law. (c) Any period of delay resulting from an ap- peal under this section shall be excluded in de- ciding any issue regarding denial of a speedy trial unless an appropriate authority determines that the appeal was filed solely for the purpose of delay with the knowledge that it was totally frivolous and without merit. (d) The United States may appeal a ruling or order of a military magistrate in the same man- ner as had the ruling or order been made by a military judge, except that the issue shall first be presented to the military judge who des- ignated the military magistrate or to a military judge detailed to hear the issue. (e) The provisions of this section shall be lib- erally construed to effect its purposes. (Aug. 10, 1956, ch. 1041, 70A Stat. 58; Pub. L. 98–209, § 5(c)(1), Dec. 6, 1983, 97 Stat. 1398; Pub. L. 103–337, div. A, title IX, § 924(c)(2), Oct. 5, 1994, 108 Stat. 2831; Pub. L. 104–106, div. A, title XI, § 1141(a), Feb. 10, 1996, 110 Stat. 466; Pub. L. 114–328, div. E, title LIX, § 5326, Dec. 23, 2016, 130 Stat. 2928; Pub. L. 115–91, div. A, title V, § 531(h), Dec. 12, 2017, 131 Stat. 1385.) HISTORICAL AND REVISION NOTES Revised section Source (U.S. Code) Source (Statutes at Large) 862(a) ...... 862(b) ...... 50:649(a). 50:649(b). May 5, 1950, ch. 169, § 1 (Art. 62), 64 Stat. 127. Editorial Notes AMENDMENTS 2017—Subsec. (b). Pub. L. 115–91 struck out ‘‘, notwithstanding section 866(c) of this title (article 66(c))’’ after ‘‘matters of law’’. 2016—Subsec. (a)(1). Pub. L. 114–328, § 5326(1)(A), in in- troductory provisions, substituted ‘‘general or special court-martial, or in a pretrial proceeding under section 830a of this title (article 30a), the United States may appeal the following:’’ for ‘‘court-martial in which a military judge presides and in which a punitive dis- charge may be adjudged, the United States may appeal the following (other than an order or ruling that is, or that amounts to, a finding of not guilty with respect to the charge or specification):’’. Subsec. (a)(1)(G). Pub. L. 114–328, § 5326(1)(B), added subpar. (G). Subsec. (a)(2). Pub. L. 114–328, § 5326(2), designated ex- isting provisions as subpar. (A) and added subpar. (B). Subsecs. (d), (e). Pub. L. 114–328, § 5326(3), added sub- secs. (d) and (e). 1996—Subsec. (a)(1). Pub. L. 104–106 amended par. (1) generally. Prior to amendment, par. (1) read as follows: ‘‘In a trial by court-martial in which a military judge presides and in which a punitive discharge may be ad- judged, the United States may appeal an order or rul- ing of the military judge which terminates the pro- ceedings with respect to a charge or specification or which excludes evidence that is substantial proof of a fact material in the proceeding. However, the United States may not appeal an order or ruling that is, or that amounts to, a finding of not guilty with respect to the charge or specification.’’ 1994—Subsec. (b). Pub. L. 103–337 substituted ‘‘Court of Criminal Appeals’’ for ‘‘Court of Military Review’’ in two places. 1983—Pub. L. 98–209 amended section generally, sub- stituting ‘‘Appeal by the United States’’ for ‘‘Reconsid- eration and revision’’ as section catchline, and, in text, substituting provisions relating to appeals by the United States for provisions relating to the convening authority returning the record to the court for recon- sideration and appropriate action. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2017 AMENDMENT Amendment by Pub. L. 115–91 effective immediately after the amendments made by div. E (§§ 5001–5542) of Pub. L. 114–328 take effect as provided for in section 5542 of that Act (10 U.S.C. 801 note), see section 531(p) of Pub. L. 115–91, set out as a note under section 801 of this title. EFFECTIVE DATE OF 2016 AMENDMENT Amendment by Pub. L. 114–328 effective on Jan. 1, 2019, as designated by the President, with imple- menting regulations and provisions relating to applica- bility to various situations, see section 5542 of Pub. L. 114–328 and Ex. Ord. No. 13825, set out as notes under section 801 of this title. EFFECTIVE DATE OF 1983 AMENDMENT Amendment by Pub. L. 98–209 effective first day of eighth calendar month beginning after Dec. 6, 1983, but not to apply to any case in which the findings and sen- tence were adjudged by a court-martial before that date, and the proceedings in any such case to be held in the same manner and with the same effect as if such amendments had not been enacted, see section 12(a)(1), (4) of Pub. L. 98–209, set out as a note under section 801 of this title. § 863. Art. 63. Rehearings (a) Each rehearing under this chapter shall take place before a court-martial composed of members not members of the court-martial which first heard the case. Upon a rehearing the accused may not be tried for any offense of which he was found not guilty by the first court- martial, and no sentence in excess of or more se- vere than the original sentence may be ad- judged, unless the sentence is based upon a find- ing of guilty of an offense not considered upon Page 785 TITLE 10—ARMED FORCES § 864 the merits in the original proceedings, or unless the sentence prescribed for the offense is manda- tory. (b) If the sentence adjudged by the first court- martial was in accordance with a plea agree- ment under section 853a of this title (article 53a) and the accused at the rehearing does not com- ply with the agreement, or if a plea of guilty was entered for an offense at the first court- martial and a plea of not guilty was entered at the rehearing, the sentence as to those charges or specifications may include any punishment not in excess of that which could have been ad- judged at the first court-martial, subject to such limitations as the President may prescribe by regulation. (c) If, after appeal by the Government under section 856(d) of this title (article 56(d)), the sen- tence adjudged is set aside and a rehearing on sentence is ordered by the Court of Criminal Ap- peals or Court of Appeals for the Armed Forces, the court-martial may impose any sentence that is in accordance with the order or ruling setting aside the adjudged sentence, subject to such lim- itations as the President may prescribe by regu- lation. (Aug. 10, 1956, ch. 1041, 70A Stat. 58; Pub. L. 98–209, § 5(d), Dec. 6, 1983, 97 Stat. 1398; Pub. L. 102–484, div. A, title X, § 1065, Oct. 23, 1992, 106 Stat. 2506; Pub. L. 114–328, div. E, title LIX, § 5327, Dec. 23, 2016, 130 Stat. 2929; Pub. L. 115–91, div. A, title V, § 531(i), Dec. 12, 2017, 131 Stat. 1385.) HISTORICAL AND REVISION NOTES Revised section Source (U.S. Code) Source (Statutes at Large) 863(a) ...... 863(b) ...... 50:650(a). 50:650(b). May 5, 1950, ch. 169, § 1 (Art. 63), 64 Stat. 127. In subsection (a), the words ‘‘In such a’’ are sub- stituted for the words ‘‘in which’’. In subsection (b), the word ‘‘Each’’ is substituted for the word ‘‘Every’’. The word ‘‘may’’ is substituted for the word ‘‘shall’’ in the second sentence. Editorial Notes AMENDMENTS 2017—Subsec. (b). Pub. L. 115–91 inserted ‘‘, subject to such limitations as the President may prescribe by reg- ulation’’ before period at end. 2016—Pub. L. 114–328 designated existing provisions as subsec. (a), substituted ‘‘may be adjudged’’ for ‘‘may be approved’’ in second sentence, struck out at end ‘‘If the sentence approved after the first court-martial was in accordance with a pretrial agreement and the accused at the rehearing changes his plea with respect to the charges or specifications upon which the pretrial agree- ment was based, or otherwise does not comply with the pretrial agreement, the approved sentence as to those charges or specifications may include any punishment not in excess of that lawfully adjudged at the first court-martial.’’, and added subsecs. (b) and (c). 1992—Pub. L. 102–484 substituted ‘‘approved’’ for ‘‘im- posed’’ in second sentence and inserted ‘‘approved’’ be- fore last reference to ‘‘sentence’’ in third sentence. 1983—Pub. L. 98–209 struck out subsec. (a) which pro- vided that if the convening authority disapproved the findings and sentence of a court-martial he could, ex- cept where there was lack of sufficient evidence in the record to support the findings, order a rehearing, stat- ing the reasons for disapproval, and that if he dis- approved the findings without reordering a rehearing, he had to dismiss the charges, and redesignated former subsec. (b) as entire section, and, as so redesignated, in- serted ‘‘under this chapter’’ after ‘‘Each rehearing’’, and inserted provision that if the sentence approved after the first court-martial was in accordance with a pretrial agreement and the accused at the rehearing changes his plea with respect to the charges or speci- fications upon which the pretrial agreement was based, or otherwise does not comply with the pretrial agree- ment, the sentence as to those charges or specifications may include any punishment not in excess of that law- fully adjudged at the first court-martial. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2017 AMENDMENT Amendment by Pub. L. 115–91 effective immediately after the amendments made by div. E (§§ 5001–5542) of Pub. L. 114–328 take effect as provided for in section 5542 of that Act (10 U.S.C. 801 note), see section 531(p) of Pub. L. 115–91, set out as a note under section 801 of this title. EFFECTIVE DATE OF 2016 AMENDMENT Amendment by Pub. L. 114–328 effective on Jan. 1, 2019, as designated by the President, with imple- menting regulations and provisions relating to applica- bility to various situations, see section 5542 of Pub. L. 114–328 and Ex. Ord. No. 13825, set out as notes under section 801 of this title. EFFECTIVE DATE OF 1992 AMENDMENT Amendment by Pub. L. 102–484 effective Oct. 23, 1992, and applicable with respect to offenses committed on or after that date, see section 1067 of Pub. L. 102–484, set out as a note under section 803 of this title. EFFECTIVE DATE OF 1983 AMENDMENT Amendment by Pub. L. 98–209 effective first day of eighth calendar month beginning after Dec. 6, 1983, but not to apply to any case in which the findings and sen- tence were adjudged by a court-martial before that date, and the proceedings in any such case to be held in the same manner and with the same effect as if such amendments had not been enacted, see section 12(a)(1), (4) of Pub. L. 98–209, set out as a note under section 801 of this title. § 864. Art. 64. Judge advocate review of finding of guilty in summary court-martial (a) IN GENERAL.—Under regulations prescribed by the Secretary concerned, each summary court-martial in which there is a finding of guilty shall be reviewed by a judge advocate. A judge advocate may not review a case under this subsection if the judge advocate has acted in the same case as an accuser, preliminary hearing of- ficer, member of the court, military judge, or counsel or has otherwise acted on behalf of the prosecution or defense. The judge advocate’s re- view shall be in writing and shall contain the following: (1) Conclusions as to whether— (A) the court had jurisdiction over the ac- cused and the offense; (B) the charge and specification stated an offense; and (C) the sentence was within the limits pre- scribed as a matter of law. (2) A response to each allegation of error made in writing by the accused. (3) If the case is sent for action under sub- section (b), a recommendation as to the appro- priate action to be taken and an opinion as to