1 M.J. 254 | United States Court of Military Appeals | 1976
OPINION OF THE COURT
Under US Army Europe Supplement 1 to Army Regulation 27-10 (Sept. 16, 1971),
On the date of his scheduled trial by special court-martial, the accused’s “45-day rule” appeal was pending as a result of the general court-martial convening authority’s refusal to dismiss the charges under the rule. Prior to arraignment, counsel for the accused moved for a continuance
on the basis that there is an appeal being processed for dismissal of these charges through administrative channel. . [I]f this appeal were approved, the charges in this case would be dismissed. By not granting the continuance today, there is a possibility that the accused could be found guilty of some charges and placed in confinement which would be a deprivation of liberty before this administrative appeal is processed.
Even though he acknowledged that a 45-day rule appeal was pending, the trial counsel maintained that the continuance should be denied since the accused’s administrative request could be granted just as easily after trial with no prejudice to the accused. The trial judge denied the motion for continuance without comment.
The appellant contends that the trial judge abused his discretion in denying the request for continuance pending resolution of his 45-day rule administrative appeal. United States v. Knudson, 4 U.S.C.M.A. 587, 16 C.M.R. 161 (1954); see Petty v. Moriarty, 20 U.S.C.M.A. 438, 43 C.M.R. 278 (1971). While the decision to grant or deny a motion for continuance rests within the trial judge’s sound discretion,
The Government maintains that the trial judge did not abuse his discretion nor prejudice the appellant by denying the continuance request since proceeding with the trial had no impact upon the ultimate resolution of the administrative appeal. Even assuming, as the Government urges, that the result of the appeal was not jeopardized by proceeding with the trial, the denial of the continuance harmed the accused more fundamentally.
We recently reaffirmed the applicability of the Accardi
While a ruling on a continuance oftentimes involves a balancing of the interests of both parties, such was not the case here. No evidence was presented by the prosecutor suggesting that delay of the trial would prejudice the interests of the United States. On the other hand, as we previously have observed, the denial of the continuance substantially prejudiced the rights of the accused. Under such circumstances, we conclude that the trial judge abused his discretion by denying the appellant’s request for a continuance pending resolution of his 45-day rule administrative appeal.
The decision of the United States Army Court of Military Review is reversed.
. A formalized appeal structure was not implemented until April 9, 1973, one month after the accused was tried. However, prior to April 9, appeals had been referred to in official messages as well as considered by the USAREUR headquarters. Eighteen of 59 appeals considered before April 9, in fact, were favorably acted upon.
. Conmy v. United States, 20 U.S.C.M.A. 282, 43 C.M.R. 122 (1971); United States v. Potter, 14 U.S.C.M.A. 118, 33 C.M.R. 330 (1963).
. A trial judge should be liberal in the granting of continuances where good cause for the delay exists. United States v. Daniels, 11 U.S.C.M.A. 52, 55, 28 C.M.R. 276, 279 (1959); United States v. Nichols, 2 U.S.C.M.A. 27, 36, 6 C.M.R. 27, 36 (1952).
. United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681 (1954).
. United States v. Burton, 21 U.S.C.M.A. 112, 44 C.M.R. 166 (1971).
. Our resolution of the first granted issue makes it unnecessary to address the second assignment of error.