10 U.S.C. § 844 — Art. 44. Former jeopardy

Page 761 TITLE 10—ARMED FORCES § 845 under section 5542(a) of the Military Justice Act of 2016 (division E of Public Law 114–328; 130 Stat. 2967) [10 U.S.C. 801 note], subsection (b)(2)(B) of section 843 of title 10, United States Code (article 43 of the Uniform Code of Military Justice), shall be applied as in effect on December 22, 2016. ‘‘(3) FRAUDULENT ENLISTMENT OR APPOINTMENT OF- FENSES.—With respect to the period beginning on De- cember 23, 2016, and ending on the day before the date designated by the President under section 5542(a) of the Military Justice Act of 2016 (division E of Public Law 114–328; 130 Stat. 2967), in the application of subsection (h) of section 843 of title 10, United States Code (article 43 of the Uniform Code of Military Justice), as added by section 5225(b) of that Act (130 Stat. 2909), the reference in such subsection (h) to section 904a(1) of title 10, United States Code (article 104a(1) of the Uniform Code of Military Justice), shall be deemed to be a reference to section 883(1) of title 10, United States Code (article 83(1) of the Uniform Code of Military Justice).’’ § 844. Art. 44. Former jeopardy (a) No person may, without his consent, be tried a second time for the same offense. (b) No proceeding in which an accused has been found guilty by a court-martial upon any charge or specification is a trial in the sense of this article until the finding of guilty has be- come final after review of the case has been fully completed. (c)(1) A court-martial with a military judge alone is a trial in the sense of this section (arti- cle) if, without fault of the accused— (A) after introduction of evidence; and (B) before announcement of findings under section 853 of this title (article 53); the case is dismissed or terminated by the con- vening authority or the special trial counsel or on motion of the prosecution for failure of avail- able evidence or witnesses. (2) A court-martial with a military judge and members is a trial in the sense of this section (article) if, without fault of the accused— (A) after the members, having taken an oath as members under section 842 of this title (ar- ticle 42) and after completion of challenges under section 841 of this title (article 41), are impaneled; and (B) before announcement of findings under section 853 of this title (article 53); the case is dismissed or terminated by the con- vening authority or the special trial counsel or on motion of the prosecution for failure of avail- able evidence or witnesses. (Aug. 10, 1956, ch. 1041, 70A Stat. 52; Pub. L. 114–328, div. E, title LVII, § 5226, Dec. 23, 2016, 130 Stat. 2910; Pub. L. 117–81, div. A, title V, § 538, Dec. 27, 2021, 135 Stat. 1698.) HISTORICAL AND REVISION NOTES Revised section Source (U.S. Code) Source (Statutes at Large) 844(a) ...... 844(b) ...... 844(c) ...... 50:619(a). 50:619(b). 50:619(c). May 5, 1950, ch. 169, § 1 (Art. 44), 64 Stat. 122. In subsection (a), the word ‘‘may’’ is substituted for the word ‘‘shall’’. In subsection (b), the word ‘‘is’’ is substituted for the words ‘‘shall be held to be’’. In subsection (c), the word ‘‘after’’ is substituted for the words ‘‘subsequent to’’. The word ‘‘before’’ is sub- stituted for the words ‘‘prior to’’. The word ‘‘is’’ is sub- stituted for the words ‘‘shall be’’. Editorial Notes AMENDMENTS 2021—Subsec. (c). Pub. L. 117–81 inserted ‘‘or the spe- cial trial counsel’’ after ‘‘the convening authority’’ in two places. 2016—Subsec. (c). Pub. L. 114–328 amended subsec. (c) generally. Prior to amendment, subsec. (c) read as fol- lows: ‘‘A proceeding which, after the introduction of evidence but before a finding, is dismissed or termi- nated by the convening authority or on motion of the prosecution for failure of available evidence or wit- nesses without any fault of the accused is a trial in the sense of this article.’’ Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2021 AMENDMENT Amendment by Pub. L. 117–81 effective on the date that is two years after Dec. 27, 2021, and applicable with respect to offenses that occur after that date, with pro- visions for delayed effect and applicability if regula- tions are not prescribed by the President before the date that is two years after Dec. 27, 2021, see section 539C of Pub. L. 117–81, 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. § 845. Art. 45. Pleas of the accused (a) IRREGULAR AND SIMILAR PLEAS.—If an ac- cused after arraignment makes an irregular pleading, or after a plea of guilty sets up matter inconsistent with the plea, or if it appears that he has entered the plea of guilty improvidently or through lack of understanding of its meaning and effect, or if he fails or refuses to plead, a plea of not guilty shall be entered in the record, and the court shall proceed as though he had pleaded not guilty. (b) PLEAS OF GUILTY.—A plea of guilty by the accused may not be received to any charge or specification alleging an offense for which the death penalty is mandatory. With respect to any other charge or specification to which a plea of guilty has been made by the accused and accept- ed by the military judge, a finding of guilty of the charge or specification may be entered im- mediately without vote. This finding shall con- stitute the finding of the court unless the plea of guilty is withdrawn prior to announcement of the sentence, in which event the proceedings shall continue as though the accused had plead- ed not guilty. (c) HARMLESS ERROR.—A variance from the re- quirements of this article is harmless error if the variance does not materially prejudice the substantial rights of the accused. (Aug. 10, 1956, ch. 1041, 70A Stat. 52; Pub. L. 90–632, § 2(19), Oct. 24, 1968, 82 Stat. 1339; Pub. L. 114–328, div. E, title LVII, § 5227, Dec. 23, 2016, 130 Stat. 2911.) HISTORICAL AND REVISION NOTES Revised section Source (U.S. Code) Source (Statutes at Large) 845(a) ...... 845(b) ...... 50:620(a). 50:620(b). May 5, 1950, ch. 169, § 1 (Art. 45), 64 Stat. 122.