NMCCA: US v. Barr (Jul 07)

17 July 2007, Navy-Marine Corps Court of Criminal Appeals released U.S. v. Barr, No. 200602492 (N.M.Ct.Crim.App. 17 Jul 2007). SPCM, military judge alone, guilty pleas, Arts 112a and 134. Sentence: 6 months, E-1, BCD. Convening Authority’s Action (“CAX”) failed to note RCM 305(k) judicially ordered confinement credit. The Court held: it was bound by precedent, including U.S. v. Stanford, 37 M.J. 388, 391 (C.M.A. 1993), and “reluctantly return[ed] the record to the Judge Advocate General for remand to the CA for a corrected CA’s action, as have our sister courts.” The judges sent a clear message that a rule change to R.C.M. 1107(g) is in order: the court found that the case involved no prejudice. R.C.M. 1107(g) grants the service CCA’s the discretion to direct the CA to withdraw an incomplete CAX and substitute a corrected one. The court offered advice to the President for the next verion of the Rules for Courts-Martial: “That same discretion should include the appellate authority to direct the judicially ordered confinement credit when there has been no prejudice to the appellant.”

HL

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Filed under Appellate Law, Criminal Law, Military Justice, Military Law

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