2 C.M.A. 179 | United States Court of Military Appeals | 1953
Opinion of the Court
Accused was convicted by Navy special court-martial
Quite clearly, a board of review has power to entertain a motion for reconsideration of a decision rendered by it, but just as obviously a board and this Court cannot exercise jurisdiction over the same cause at the same time. United States v. Reeves (No. 453), 3 CMR 122, decided May 15, 1952. The critical question here, therefore, is whether the “Petition” accused placed in channels on May 15 operated to invest this Court with jurisdiction over his case. Accepting for the moment the notion that the paper filed was in fact and law a petition for review, there is no doubt that its having been placed in proper military channels amounted to a “filing” of the case in this Court. Rule 22(b) of our Rules of Practice and Procedure expressly provides that:
“A petition for Grant of Review shall be deemed to have been filed . . . upon the date when the petition is deposited in military channels for transmittal.”
Equally without doubt, the filing of a petition for review operates to vest in this Court jurisdiction of a ease. Uniform Code of Military Justice, Article 67(c), 50 USC § 654. Perhaps we should observe in passing that Rule 22 (b), supra, is entirely consistent with Article 67(c) of the Code, supra — for inherent in the latter is a clear recognition that an accused may effectively “petition” for review before the papers forwarded by him are in fact received in the Court of Military Appeals.
III
Remaining is the question of whether the paper filed by accused was a “Petition for Grant of Review.” Comparing it with the form set out in Rule 18, Rules of Practice and Procedure, supra, it is apparent that it does not comply therewith in several particulars. It does not set out the offenses of which accused was found guilty, nor does it aver in what respects the board of review is thought to have erred. References to the trial court and board of review action are demanded by the form provided by us, which also contains an express request for assignment of appellate defense counsel. However, we cannot conscientiously rule that accused’s “Petition” failed to meet the minimum requirements set up by the Uniform Code of Military Justice, 50 USC §§ 551-736, the Manual for Courts-Martial, United States, 1951, and this Court. He had signed and forwarded a mimeographed form furnished by the Navy and represented in its very title to be a “Petition For Grant of Review” by the Court of Military Appeals. It would constitute a grave injustice if we were to penalize him for reliance on the guidance of his service superiors. Indeed, the shortcomings of his “Petition” could very well have been cured en route by appellate defense counsel assigned to him. Where a strict interpretation of the Rules would result in a miscarriage of justice, we must and will relax them to the extent necessary — and we have done this on numerous essentially indistinguishable occasions. Accordingly, we hold that the paper signed by defendant and placed in service channels was a petition within the meaning of Article 66 (c) of the Code, 50 USC § 653, and of our Rule 22(b). It follows that the determination of the board of review that it had no jurisdiction to consider the motion for reconsideration was the correct one. Since accused’s petition was filed within thirty days after notification of the decision of the board of review, it is unnecessary to decide whether the filing of a motion for reconsideration by a board of review suspends the running of the period within which a convicted accused may petition this Court.
IV
In its denial of the motion for reconsideration, the board of review indicated that it regarded the motion
as meritorious “If substantiating affidavits show that the allegations are true.” Affidavits respecting these allegations have been filed. In most instance — and doubtless in this one — the interests of an accused are better served by initial action by a board of review than by that
4-52-Sp-213