United States v. Withrow

8 C.M.A. 728 | United States Court of Military Appeals | 1958

Opinion of the Court

PER CURIAM:

The accused was tried and convicted by a special court-martial of several offenses under the Uniform Code of Military Justice. He pleaded guilty to two of the offenses but not guilty to the remaining two offenses of attempted bribery, in violation of Article 80 of the Code, supra, 10 USC § 880. The staff legal officer, in his review, set forth the evidence adduced at trial relating to the offenses to which the accused had pleaded not guilty. He failed, however, to evaluate the adequacy and weight to be given this evidence. Paragraph 855, Manual for Courts-Martial, United States, 1951, in discussing the form and content of the post-trial review, provides as follows:

“The staff judge advocate or legal officer to whom a record of trial is referred for review and advice will submit a written review thereof to the convening authority. The review will include a summary of the evidence in the case, his opinion as to the adequacy and weight of the evidence and the effect of any error or irregularity respecting the proceedings, and a specific recommendation as to the action to be taken. Reasons for both the opinion and the recommendation will be stated.” [Emphasis supplied.]

The staff legal officer’s review in the ease at bar merely summarized, it did not advise. This was error. United States v Grice, 8 USCMA 166, 23 CMR 390; United States v Johnson, 8 USCMA 173, 23 CMR 397. The error, however, extends only to those offenses to which the accused had pleaded not guilty.

This case may be disposed of by returning the record to the board of review which, in its discretion, may set aside the findings of guilt of the specifications under Charge I and the Additional Charge, and reassess the sentence on the remaining approved findings of guilt or may submit the record to a competent convening authority for further proceedings in conformity with Articles 61 and 64 of the Code, supra, 10 USC §§861 and 864. Cf. United States v Katzenberger, 8 USCMA 497, 24 CMR 307.