2 M.J. 1274 | U.S. Army Court of Military Review | 1976
Lead Opinion
DECISION ON FURTHER REVIEW
This Court, in its decision, dated 5 September 1975, set aside the findings of guilty and the sentence and authorized a rehearing. This action was based upon the Court’s determination that the appellant’s plea was entered pursuant to a pretrial agreement which contained a provision for its automatic cancellation in the event appellant failed “to enter a plea of guilty prior to presentation of evidence on the merits,” citing United States v. Kapp, No. 29,080, which was reversed in an asterisk footnote to United States v. Holland, 23 U. S.C.M.A. 442, 50 C.M.R. 461, 1 M.J. 58 (1975) .
The United States Court of Military Appeals, in its decision and order, dated 20 January 1976, reversed our decision of 5 September 1975, and returned the record to The Judge Advocate General of the Army for appropriate further proceedings, citing United States v. Elmore, No. 30,921, 24 U.S.C.M.A. 81, 51 C.M.R. 254, 1 M.J. 262 (1976) . In Elmore, the Court held that the above-mentioned provision imposes no unlawful restrictions, and therefore, it cannot be regarded as contrary to public policy. The record of trial in the instant case has been returned to this Court for further review in accordance with the mandate of the Court of Military Appeals, dated 20 January 1976.
For the reasons set forth in United States v. Miller, 51 C.M.R. 829, 1 M.J. 798 (A.C. M.R. 1976), this Court holds that the requirements of United States v. Goode, supra, have not been complied with.
A new post-trial proceeding in which those requirements are fulfilled is mandated.
The action of the convening authority, dated 16 May 1975, is hereby set aside. The record of trial is returned to The Judge Advocate General for a new review and action by a different staff judge advocate and convening authority.
This Court notes, however, that subsequent to May 1975 Captain Canatela was assigned to Fort Sheridan, Illinois, and remained there at least until September 1975.
Dissenting Opinion
dissenting:
I dissent.
For the reasons set forth in my dissent in United States v. Miller, 51 C.M.R. 829, 1 M.J. 798 (A.C.M.R.1976), I would affirm the findings and sentence in this case.