2007
(under RCM 707(e), an
unconditional plea of guilty which results in a finding of guilty
waives any speedy trial issue as to that offense under the Rule; in
this case, appellant’s unconditional guilty plea waived his speedy
trial rights under RCM 707).
(in this case, although the
SJA recommended that the convening authority “withdraw” the charges and
the convening authority wrote “concur,” this is not a case where the
convening authority had the option of either dismissal or withdrawal;
with respect to the disposition choices in his recommendation, the SJA
provided the convening authority with only one option with respect to
dismissal or withdrawal -- that is, dismissal -- and he used common
language which has the same colloquial meaning as dismissal; the
parties agreed that the charges had not been referred to a
court-martial at the time of the convening authority’s action, and that
the convening authority could not “withdraw” the charges from a
court-martial as a matter of law under RCM 604; although use of the
word “withdrawal” to implement a dismissal of charges is not
recommended, the SJA’s accurate presentation of dismissal as an option
and the convening authority’s decision to concur were sufficient to
dismiss the charges and stop the RCM 707 speedy trial clock).
(once charges are dismissed,
absent a subterfuge, the speedy-trial clock is restarted).
2005
United
States v. Mizgala, 61 M.J. 122 (RCM 707(e) provides that a plea of
guilty
which results in a finding of guilty waives any speedy trial issue as
to that
offense; the language of Article 10 is clearly different from RCM 707
and
Article 10 is not restricted by RCM 707; the protections afforded
confined or
arrested servicemembers under Article 10 are distinct and greater given
the
nature of other speedy trial protections; and RCM 707(e) does not act
as a
limitation on the rights afforded under Article 10).
(Article 10 and RCM 707 are distinct, each providing its own speedy
trial
protection; the fact that a prosecution meets the 120-day rule of RCM
707 does
not directly or indirectly demonstrate that the Government moved to
trial with
reasonable diligence as required by Article 10).
United
States v. Dooley, 61 M.J. 258 (under RCM 707, the military
judge is
directed to apply certain factors in determining a remedy for a speedy
trial
violation, and then decide whether those factors lead to the conclusion
that
the case should be dismissed with or without prejudice; under an abuse
of
discretion standard, mere disagreement with the conclusion of the
military
judge who applied the RCM 707 factors is not enough to overturn his
judgment;
the standard requires that the military judge be clearly wrong in his
determination of the facts or that his decision be influenced by an
erroneous
view of the law).
(a military judge’s decision
to dismiss a
case with prejudice for an RCM 707 speedy trial violation can be
reversed only
for a clear abuse of discretion; the military judge’s decision should
be
affirmed unless his factual findings are clearly erroneous or his
decision in
applying the RCM 707 speedy trial factors was influenced by an
incorrect view
of the law).
United
States v. Lazauskas, 62 M.J. 39 (RCM 707 provides that the accused
shall be
brought to trial within 120 days after the imposition of restraint}.
(prior to referral of charges,
all
requests for pretrial delay will be submitted to the convening
authority or to
a military judge; after referral, such requests for pretrial delay will
be
submitted to the military judge for resolution).
(all pretrial delays approved
by the
convening authority are excludable so long as approving them was not an
abuse
of the convening authority’s discretion; it does not matter which party
is
responsible).
(prior to referral, the
convening authority
may delegate the authority to grant continuances to an Article 32
investigating
officer; where, as here, the convening authority has delegated to an
investigating officer the authority to grant any reasonably requested
delays of
the Article 32 investigation, then any delays approved by the Article
32
investigating officer also are excludable; thus, when an investigating
officer
has been delegated authority to grant delays, the period covered by the
delay
is excludable from the 120-day period under RCM 707).
(if the issue of speedy trial
under RCM
707 is raised before the military judge at trial, the issue is not
which party
is responsible for the delay but whether the decision of the officer
granting
the delay was an abuse of discretion; the resolution under RCM 707 does
not
preclude a party from asserting responsibility for delay under Article
10,
UCMJ, or the Constitution; it simply means that in the absence of an
abuse of
discretion by the officer granting the delay, there is no violation of
RCM 707).
(the military judge did not
abuse his
discretion under RCM 707 in excluding from the 120-day speedy trial
period a
delay during the Article 32 investigation to obtain the personal
testimony of
witnesses who were on leave because the defense objected to taking
their
testimony over the telephone).
(the
military judge did not abuse his discretion under RCM 707 in excluding
from the
120-day speedy trial period a five-day period from the service of the
referred
charges until the expiration of the Article 35 waiting period,
notwithstanding
the accused’s contention that the Article 35 waiting period would have
prohibited the government from bringing him to trial during that time,
where
the accused did not raise any Article 35 objection at the trial level;
the five-day
Article 35 period was neither requested nor necessary in this case to
protect
the accused).
2000
United
States v. Becker, 53 MJ 229 (the absence of
language in
RCM 707 specifically tailored to sentence-only rehearings is not viewed
as a
conscious decision to retain a 90-day speedy trial violation
presumption;
rather, the mechanics of RCM 707 can be applied to sentence-only
rehearings in
a manner that will protect a servicemember’s rights under Articles 10
and 33
without applying a 90-day presumption).
(absent a modification of RCM 707, the procedures established under
RCM 707
will be applied to sentence-only proceedings in accordance with the
following
principles: (1) the 120-day clock will start on the date that the
responsible convening authority receives the record of trial and the
opinion
authorizing or directing a rehearing; (2) the clock will stop when the
accused
is brought to the bar for sentencing, typically at the first session
under
Article 39(a), UCMJ; (3) if the government has sufficient reason to
justify a
delay, all such requests for delay, together with supporting reasons,
will be
submitted to the convening authority prior to referral or, after
referral, to
the military judge for resolution; and, (4) the remedy should be
tailored to
the harm suffered).
(the application of speedy trial principles to sentence-only
rehearings
should include cases that do not involve confinement, absent an express
provision in RCM 707 excluding such cases).
(the application of nonconstitutional speedy trial principles to
sentence-only rehearings should be applied in a prospective fashion).
(even applying nonconstitutional speedy trial principles to
appellant’s case,
appellant was entitled to no relief, despite the fact that rehearing
started
316 days after the record had been transmitted to the convening
authority,
where appellant made no showing that the delay impacted on the
rehearing and
dismissal of the charges would be disproportionate to the harm
suffered).
1999
United
States v. Anderson, 50 MJ 447 (where charges are
dismissed,
absent a subterfuge, the speedy trial clock is restarted and a new
120-day time
period under RCM 707(b)(3)(A) begins on the day of dismissal; even
where there
is continued restraint, a dismissal of the charges stops the 120-day
clock and
a new 120-day clock is started on the day of dismissal).
United
States v. Doty, 51 MJ 464 (in order for an accused to be
brought
to trial within the meaning of RCM 707, he must be called upon to
plead, the
process known as arraignment; even where conducted “in the nick of
time” on the
119th day, the arraignment was proper and not a sham).
(rule stopping the speedy trial clock of RCM 707 when an accused is
arraigned will not be unilaterally modified by appellate decision where
that
rule is a clearly written Presidential rule that does not conflict with
the
UCMJ or the Constitution).