Chapter XII · Appeals and Review

R.C.M. 1203. Review by a Court of Criminal Appeals

2024 Manual for Courts-Martial, United States

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(a) In general. Each Judge Advocate General shall establish a Court of Criminal Appeals composed of appellate military judges who shall serve for a tour of not less than three years, subject to such provision for reassignment as may be prescribed in regulations issued by the Secretary concerned.
Discussion
See Article 66 concerning the composition of the Courts of Criminal Appeals, the qualifications of appellate military judges, the grounds for their ineligibility, and restrictions upon the official relationship of the members of the court to other members. Uniform rules of court for the Courts of Criminal Appeals are prescribed by the Judge Advocates General.
(b) Cases reviewed by a Court of Criminal Appeals— Automatic Review. A Court of Criminal Appeals shall review cases forwarded to it by the Judge Advocate General under Article 65(b)(1).
Discussion
See R.C.M. 1116(b)(1).
Except for when an accused waives or withdraws the right to appellate review, a Court of Criminal Appeals automatically reviews cases in which the judgment entered into the record includes a sentence of death; dismissal of a commissioned officer, cadet, or midshipman; dishonorable discharge or bad-conduct discharge; or confinement for 2 years or more. See Article 65(b)(1), Article 66(b)(3), R.C.M. 1116(b)(1).
An accused may not waive the right to appellate review or withdraw an appeal before the Court of Criminal Appeals in any general court-martial in which the judgment includes a sentence of death. See R.C.M. 1115.
(c) Cases eligible for review by a Court of Criminal Appeals—Appeal by the accused. A Court of Criminal Appeals shall review a timely appeal from the judgment of the court-martial in accordance with the standards set forth in Article 66(b)(1) and the rules prescribed under Article 66(h).
Discussion
The Court of Criminal Appeals may specify additional issues for briefing, argument, and decision, and may review eligible cases for plain error. See R.C.M. 1115 for waiver of appellate review or withdrawal of an appeal. In those cases in which an accused chooses not to file an appeal, the case will be reviewed by an attorney under R.C.M. 1201(a)(2). If a Court of Criminal Appeals sets aside any finding of guilty or the sentence, it may, except as to findings set aside for lack of sufficient evidence in the record to support the findings, authorize an appropriate type of rehearing or reassess the sentence as appropriate. See R.C.M. 810 concerning rehearings. If the Court of Criminal Appeals sets aside all the findings and the sentence and does not authorize a rehearing, it must order the charges dismissed. See Article 59(a) and Article 66. A Court of Criminal Appeals may on petition for extraordinary relief issue all writs necessary or appropriate in aid of its jurisdiction and agreeable to the usages and principles of law. Any party may petition a Court of Criminal Appeals for extraordinary relief. See R.C.M. 908 concerning procedures for interlocutory appeals by the Government. See R.C.M. 1117 concerning Government appeals of certain sentences.
(d) Timeliness. In order for an appeal under subsection (c) to be timely, it must be filed in accordance with Article 66(c) and the rules prescribed under Article 66(h).
(e) Action on cases reviewed by a Court of Criminal Appeals.
(1) Forwarding by the Judge Advocate General to the Court of Appeals for the Armed Forces. The Judge Advocate General may forward the decision of the Court of Criminal Appeals to the Court of Appeals for the Armed Forces for review with respect to any matter of law. In such a case, the Judge Advocate General shall cause a copy of the decision of the Court of Criminal Appeals and the order forwarding the case to be served on the accused and on appellate defense counsel. While a review of a forwarded case is pending, the Secretary concerned may defer further service of a sentence to confinement that has been ordered executed in such a case.
Discussion
Prior to forwarding a case to the Court of Appeals for the Armed Forces for review, the Judge Advocate General concerned is required to provide appropriate notification to the other Judge Advocates General and the Staff Judge Advocate to the Commandant of the Marine Corps. See Article 67(a)(2) and R.C.M. 1204(a)(2). When a decision of the Court of Criminal Appeals has the effect of setting aside confinement the appellant is serving, and the Judge Advocate General has decided to forward the decision of the Court of Criminal Appeals to the Court of Appeals for the Armed Forces for review under this rule, a new R.C.M. 305 review may be required if continued confinement is sought.
(2) Action when findings are set aside. In a case reviewed by the Court of Criminal Appeals under this rule in which it has set aside the findings and which is not forwarded to the Court of Appeals for the Armed Forces under R.C.M. 1203(e)(1), the Judge Advocate General shall instruct an appropriate authority to take action in accordance with the decision of the Court of Criminal Appeals. If the Court of Criminal Appeals has authorized a rehearing on findings, the record shall be sent to an appropriate referral authority.
(A) If the Court has authorized a rehearing, but the convening authority to whom the record is transmitted finds a rehearing impracticable, the convening authority shall dismiss the charges.
(B) If the Court has authorized a rehearing, but the special trial counsel to whom the record is transmitted finds a rehearing impracticable, special trial counsel shall dismiss the charges.
Discussion
If charges are dismissed, see R.C.M. 1208 concerning restoration of rights, privileges, and property. See R.C.M. 1111 concerning the entry of judgment.
(3) Action when sentence is set aside. In a case reviewed by the Court of Criminal Appeals under this rule in which it has set aside the sentence and which is not forwarded to the Court of Appeals for the Armed Forces under R.C.M. 1203(e)(1), the Judge Advocate General shall instruct an appropriate authority to modify the judgment in accordance with the decision of the Court of Criminal Appeals. If the Court of Criminal Appeals has authorized a rehearing on sentence, the record shall be sent to an appropriate referral authority.
(A) If the convening authority finds a rehearing impracticable, the applicable convening authority shall order either that a sentence of no punishment be imposed or that the applicable charges be dismissed.
(B) If special trial counsel finds a rehearing impracticable, special trial counsel may dismiss the applicable charges. If special trial counsel makes a determination not to dismiss the applicable charges, the convening authority shall order that a sentence of no punishment be imposed.
(4) Action when sentence is affirmed in whole or part.
(A) Sentence including death. If the Court of Criminal Appeals affirms any sentence which includes death, the Judge Advocate General shall transmit the record of trial and the decision of the Court of Criminal Appeals directly to the Court of Appeals for the Armed Forces when any period for reconsideration provided by the rules of the Courts of Criminal Appeals has expired.
(B) Other cases. If the Court of Criminal Appeals affirms any sentence other than one which includes death, the Judge Advocate General shall cause a copy of the decision of the Court of Criminal Appeals to be served on the accused in accordance with R.C.M. 1203(f).
Discussion
If charges are dismissed, see R.C.M. 1208 concerning restoration of rights, privileges, and property. See R.C.M. 1111 concerning the entry of judgment.
(5) Remission or suspension. If the Judge Advocate General believes that a sentence as affirmed by the Court of Criminal Appeals, other than one which includes death, should be remitted or suspended in whole or part, the Judge Advocate General may, before taking action under R.C.M. 1203(e)(1) or (4), transmit the record of trial and the decision of the Court of Criminal Appeals to the Secretary concerned with a recommendation for action under Article 74 or may take such action as may be authorized by the Secretary concerned under Article 74(a).
(6) Action when accused lacks mental capacity. In a review conducted under R.C.M. 1203(b) or (c), the Court of Criminal Appeals may not affirm the proceedings while the accused lacks mental capacity to understand and to conduct or cooperate intelligently in the appellate proceedings. In the absence of substantial evidence to the contrary, the accused is presumed to have the capacity to understand and to conduct or cooperate intelligently in the appellate proceedings. If a substantial question is raised as to the requisite mental capacity of the accused, the Court of Criminal Appeals may direct an examination of the accused in accordance with R.C.M. 706, but the examination may be limited to determining the accused’s present capacity to understand and cooperate in the appellate proceedings. The Court may further order a remand under R.C.M. 810(f) as may be necessary. If the record is thereafter returned to the Court of Criminal Appeals, the Court of Criminal Appeals may affirm part or all of the findings or sentence unless it is established, by a preponderance of the evidence—including matters outside the record of trial—that the accused does not have the requisite mental capacity. If the accused does not have the requisite mental capacity, the Court of Criminal Appeals shall stay the proceedings until the accused regains appropriate capacity or take other appropriate action. Nothing in this subsection shall prohibit the Court of Criminal Appeals from making a determination in favor of the accused which will result in the setting aside of a conviction.
(f) Notification to accused.
(1) Notification of decision. The accused shall be notified of the decision of the Court of Criminal Appeals in accordance with regulations prescribed by the Secretary concerned.
Discussion
The accused may be notified personally, or a copy of the decision may be sent, after service on appellate counsel of record, if any, 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 the accused’s official service record. If the Judge Advocate General has forwarded the case to the Court of Appeals for the Armed Forces, the accused should be so notified.
(2) Notification of right to petition the Court of Appeals for the Armed Forces for review. If the accused has the right to petition the Court of Appeals for the Armed Forces for review, the accused shall be provided with a copy of the decision of the Court of Criminal Appeals bearing an endorsement notifying the accused of this right. The endorsement shall inform the accused that such a petition:
(A) May be filed only within 60 days from the time the accused was in fact notified of the decision of the Court of Criminal Appeals or the mailed copy of the decision was postmarked, whichever is earlier; and
(B) May be forwarded through the officer immediately exercising general court-martial jurisdiction over the accused and through the appropriate Judge Advocate General or filed directly with the Court of Appeals for the Armed Forces.
Discussion
See Article 67(c); see also R.C.M. 1204(b).
(3) Receipt by the accused—disposition. When the accused has the right to petition the Court of Appeals for the Armed Forces for review, the receipt of the accused for the copy of the decision of the Court of Criminal Appeals, a certificate of service on the accused, or the postal receipt for delivery of certified mail shall be transmitted in duplicate by expeditious means to the appropriate Judge Advocate General. If the accused is personally served, the receipt or certificate of service shall show the date of service. The Judge Advocate General shall forward one copy of the receipt, certificate, or postal receipt to the clerk of the Court of Appeals for the Armed Forces when required by the court.
(g) Cases not reviewed by the Court of Appeals for the Armed Forces. If the decision of the Court of Criminal Appeals is not subject to review by the Court of Appeals for the Armed Forces, or if the Judge Advocate General has not forwarded the case to the Court of Appeals for the Armed Forces and the accused has not filed or the Court of Appeals for the Armed Forces has denied a petition for review, then either:
(1) The Judge Advocate General shall, if the sentence affirmed by the Court of Criminal Appeals includes a dismissal, transmit the record, the decision of the Court of Criminal Appeals, and the Judge Advocate General’s recommendation to the Secretary concerned for action under R.C.M. 1206; or
(2) If the sentence affirmed by the Court of Criminal Appeals does not include a dismissal, the unexecuted portion of the sentence affirmed by the Court of Criminal Appeals shall be executed in accordance with R.C.M. 1102.
Discussion
See R.C.M. 1102, 1206, and Article 74(a) concerning the authority of the Secretary and others to take action.