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
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MAR - APR 2019
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