HCBA Lawyer Magazine Vol. 29, No. 4 | Page 55

sea CHange For MiliTarY JusTiCe Military & Veterans affairs Committee Continued from page 52 adjudge a sentence. Previously, only a two-thirds vote was required. This change is somewhat illusory, however, since panel sizes of four and eight require three and six votes respectively for a conviction under both the two-thirds and three-fourths systems. 4) Provided an option for sentencing by the military judge after guilty finding by a members panel. If an accused elects sentencing by a military judge, the military judge now awards segmented sentencing for each guilty finding. The judge can also decide whether the punishments runs concurrently or consecutively. Under the former system, judges and member panels awarded punishment under a unitary sentencing scheme. 5) Added mandatory minimum punishments to pretrial agreements. Under the former plea bargain system, the accused and commanding officer signed a pretrial agreement placing caps (ceilings) on punishments in exchange for guilty pleas. This sentence limitation portion of the agreement was kept secret from the military judge until after the judge’s announcement of a sentence. The accused then received the lesser of the punishment awarded by the military judge or the sentence limitation section of the pretrial agreement. As a result, it was possible for a defense counsel to present a strong extenuation and mitigation case to “beat the deal.” Under the new system, the pretrial agreement includes minimum and maximum punishments. The military judge is made aware of these limits and awards a punishment within that range. Sun Tzu stated, “In the midst of chaos, there is also opportunity.” Growing pains are sure to accompany the implementation of the Military Justice Act. Military justice practitioners should seek to understand the changes as best as possible in order to maximize the opportunities for their military clients. Author: Matthew Smith - Matthew T. Smith Law, P.A. Leonard H. Gilbert 813.227.6481 | [email protected] Experienced. Practical. Professional. Certified Circuit Civil and Federal Court Mediator Available throughout Florida www.hklaw.com Tampa, FL | 813.227.8500 Copyright © 2018 Holland & Knight LLP All Rights Reserved MAR - APR 2019 | HCBA LAWYER 53