United States v. Flint

1 M.J. 428 | United States Court of Military Appeals | 1976

OPINION OF THE COURT

FLETCHER, Chief Judge:

The decision of the United States Army Court of Military Review is affirmed. In affirming, we adopt the development and analysis of that court in resolving the speedy trial question,¹ except insofar as the court exempted all rehearings, rather than merely Dubay-type proceedings² from the Burton³ rule. A DuBay proceeding, in effect, is utilized to gather additional evidence or to resolve conflicting evidence before determining an issue presented to the appellate tribunal. A rehearing, on the other hand, is a trial de novo, to redetermine either an accused’s guilt or an appropriate sentence or both. As such, rehearings necessarily fall within the Burton mandate, and such rehearings must be held within 90 days of the date the convening authority is notified of the final decision authorizing a rehearing. Inasmuch as the offenses involved in this case all predated the Burton decision, the rule has no applicability in this instance.

Judge COOK and Judge PERRY concur.

1 . United States v. Flint, 50 C.M.R. 865 (ACMR 1975).

2 . United States v. DuBay, 17 U.S.C.M.A. 147, 37 C.M.R. 411 (1967).

3 . United States v. Burton, 21 U.S.C.M.A. 112, 44 C.M.R. 166 (1971).