25 M.J. 531 | U.S. Army Court of Military Review | 1987
OPINION OF THE COURT
On 19 March 1987, appellant was convicted, pursuant to his pleas, of larceny of various items of U.S. Army property of an aggregate value in excess of $100.00 during a seventeen month period, alleged in one specification of a charge in violation of Article 121, Uniform Code of Military Justice, 10 U.S.C. § 921 (1982). He was sen-
Before this court, the appellant alleges that the military judge erred to his substantial prejudice by finding him guilty of larceny of property of a value greater than $100.00, and that the court adjudged and the convening authority approved a sentence in excess of the authorized maximum sentence. He requests that this court order a sentence rehearing. The government argues that this court may sustain the findings, as alleged, and the sentence, because appellant and his counsel would only have entered into the pretrial agreement and pled guilty based on their knowledge that the property stolen on any one occasion had the greater value.
Under military law, the penalty for the offense of larceny is graduated according to the value or kind of property-taken. Manual for Courts-Martial, United States, 1984, Part IV, para. 46e [hereinafter M.C.M., 1984]. For an accused to be convicted of larceny of property having a value of over $100.00, the record must show either that one item of the property-stolen has such a value or that several items taken at substantially the same time and place have such an aggregate value.
The specification in this case lists a variety of items
However, with respect to appellant’s argument that sentence relief is required,
The court affirms only so much of the findings of guilty of the Charge and its Specification as finds larceny of property of some value. The sentence is affirmed.
. If followed, the rules of pleading in the M.C.M., 1984 would have precluded the issues raised in this case. Rule for Courts-Martial 307(c)(4) [hereinafter R.C.M.] provides that each specification shall state only one offense. During the providence inquiry into the appellant’s plea of guilty to the single specification, he admitted that he wrongfully took or withheld many items of property over a seventeen-month period at different locations. The Discussion to R.C.M. 307(c)(3) at (H)(iv) states that ”[i]f several articles of different kinds are the subject of the offense, the value of each article should be stated followed by a statement of the aggregate value.” In this case, only the aggregate value of the articles was alleged or established during the providence inquiry.
. The property listed consisted of miscellaneous foodstuffs, numerous items of ammunition, pyrotechnics and explosives, medical and office supplies, a cot, thirty-five batteries and two protective mask carriers.
. Appellant’s responses during the providence inquiry demonstrated that within the single specification were many "separate offenses,” and not separate acts constituting a "continuous offense.” R.C.M. 906(b)(5) discussion. Having received the benefit of having his separate offenses charged in the same specification, the appellant, understandably, did not object and ask for severance of the duplicious joinder.
. For reasons not clear in the record, the government failed to accept the appellant’s offer, in the pretrial agreement, to enter into a written stipulation of fact.
. The maximum punishment for a larceny of property of a value of $100.00 or less is, inter alia, a bad-conduct discharge and confinement for six months. M.C.M., 1984, para. 46e.