6 M.J. 550 | U S Air Force Court of Military Review | 1978
DECISION
Tried by a general court-martial with members, the accused was convicted, consonant with his pleas, of one specification of larceny of checks valued at about $4,346.00 and 27 specifications of forgery, in violation of Articles 121 and 123 of the Uniform Code of Military Justice, 10 U.S.C. §§ 921, 923. The adjudged sentence was a bad conduct discharge, confinement at hard labor for 18 months, forfeiture of $100.00 per month for 18 months, a fine to the United States in the amount of $1,000.00 and reduction to
For the reasons stated in United States v. Kirkle, 50 C.M.R. 552 (A.F.C.M.R. 1975), pet. denied, 50 C.M.R. 904 (A.F.C.M. R.1975), we find no merit in the accused’s contention that the forgery specifications were multiplicious for sentencing purposes with the larceny specification. It bears noting that United States v. Cashwell, 45 C.M.R. 748 (A.C.M.R.1972), pet. denied, 45 C.M.R. 928 (1972), a case relied on by the accused for his contention of multiplicity, was rejected by a different panel of the Army Court of Military Review in favor of our reasoning in Kirkle. United States v. Hudson, 2 M.J. 958 (A.C.M.R.1976).
In another assertion of error, appellate defense counsel claim that the review of the staff judge advocate is prejudicially defective because of the reviewer’s advice regarding the maximum imposable punishment. We disagree.
During trial the military judge determined that several of the forgery offenses were multiplicious for sentencing purposes and so instructed the court. In his post-trial review to the convening authority, the staff judge advocate made the following comment concerning the judge’s determination:
After appropriate argument for both sides, the military judge erroneously, but to the benefit of the accused, ruled that the maximum imposable confinement was 70 years confinement at hard labor with accessory penalties. (Emphasis ours)
Thereafter, the staff judge advocate recommenced that, with the exception of the $1,000.00 fine, the adjudged sentence be approved. As recited above, the convening authority so acted.
In his Goode
Assuming for purposes of this decision that the military judge did, in fact, err in the accused’s favor in his instruction to the court concerning the maximum imposable confinement, it was improper for the staff judge advocate to say so in his advice to the convening authority. As the Army Court of Military Review stated in United States v. Richardson, 2 M.J. 436 (A.C.M.R. 1975):
[I]t was incumbent upon . . . [the staff judge advocate] to inform the convening authority of the limitation placed upon his discretion when determining an appropriate sentence by the military judge’s ruling that the charges were multiplicious. United States v. Westcott, 48 C.M.R. 237 (A.C.M.R.1973); United States v. Love, 46 C.M.R. 741 (A.C.M.R.1972), pet. denied, 22 U.S.C.M.A. 618, 46 C.M.R. 1323 (1973). His decision was the law of the case and binding on the convening authority. United States v. Strand, 6 U.S.C.M.A. 297, 20 C.M.R. 13, 22 (1955); United States v. McArdle, 27 C.M.R. 1006, 1018 (A.F.B.R.1959). (footnote omitted)
Although, for the foregoing reason, the staff judge advocate erred in his advice, we perceive no fair risk of prejudice to the
We have carefully considered the remaining assertions of error advanced by appellate defense counsel and find them without merit and warranting no discussion. For the reasons stated, the findings of guilty and the sentence, as approved, are
AFFIRMED.
. United States v. Goode, 1 M.J. 3 (C.M.A. 1975).
. For the reasons stated in United States v. Lehman, 5 M.J. 740 (A.F.C.M.R.1978), we disagree with appellate government counsel’s insinuation that the defense counsel’s Goode comment on the reviewer’s error obviated the need for further comment by the staff judge advocate. See also United States v. Hardesty, 1 M.J. 780, 782 (A.F.C.M.R.1976), concurring opinion by Senior Judge Early.