History: L. 1972, ch. 203, §§ 48-2901 to 48-2914; Repealed, L. 1988, ch. 191, § 68; July 1.
(b) Any reviewing authority with the power to approve or affirm a finding of guilty may approve or affirm, instead, so much of the finding as includes a lesser included offense.
History: L. 1988, ch. 191, § 37; July 1.
(b) (1) Within 30 days after announcement of the sentence of a general court-martial or a special court-martial which has adjudged a bad-conduct discharge, the accused may submit to the convening authority matters for consideration by the convening authority with respect to the findings and the sentence. In the case of all other special courts-martial, the accused may make such a submission to the convening authority within 20 days after the sentence is announced. In the case of all summary courts-martial the accused may make such a submission to the convening authority within seven days after the sentence is announced. If the accused shows that additional time is required for the accused to submit such matters, the convening authority or other person taking action under this section, for good cause, may extend the period:
(A) In the case of a general court-martial or a special court-martial which has adjudged a bad-conduct discharge, for not more than an additional 20 days; and
(B) in the case of all other courts-martial, for not more than an additional 10 days.
(2) In a summary court-martial case, the accused shall be promptly provided a copy of the record of trial for use in preparing a submission authorized by subsection (b)(1).
(3) In no event shall the accused in any general or special court-martial case have less than a seven-day period after the day on which a copy of the authenticated record of trial has been given to the accused within which to make a submission under subsection (b)(1). The convening authority or other person taking action on the case, for good cause, may extend this period for up to an additional 10 days.
(4) The accused may waive the accused's right to make a submission to the convening authority under subsection (b)(1). Such a waiver must be made in writing and may not be revoked. For the purposes of subsection (c)(2), the time within which the accused may make a submission under this subsection shall be deemed to have expired upon the submission of such a waiver to the convening authority.
(c) (1) The authority under this section to modify the findings and sentence of a court-martial is a matter of command prerogative involving the sole discretion of the convening authority. Under regulations of the governor, a commissioned officer commanding for the time being, a successor in command, or any person exercising general court-martial jurisdiction may act under this section in place of the convening authority.
(2) Action on the sentence of a court-martial shall be taken by the convening authority or by another person authorized to act under this section. Subject to regulations of the governor, such action may be taken only after consideration of any matters submitted by the accused under subsection (b) and, if applicable, under subsection (d), or after the time for submitting such matters expires, whichever is earlier. The convening authority or other person taking such action, in such person's sole discretion, may approve, disapprove, commute or suspend the sentence in whole or in part.
(3) Action on the findings of a court-martial by the convening authority or other person acting on the sentence is not required. However, such person, in such person's sole discretion, may:
(A) Dismiss any charge or specification by setting aside a finding of guilty thereto; or
(B) change a finding of guilty to a charge or specification by a finding of guilty to an offense that is a lesser-included offense of the offense stated in the charge or specification.
(d) Before acting under this section on any general court-martial case or any special court-martial case that includes a bad-conduct discharge, the convening authority or other person taking action under this section shall obtain and consider the written recommendation of the staff judge advocate. The convening authority or other person taking action under this section shall refer the record of trial to such person's staff judge advocate and the staff judge advocate shall use such record in the preparation of the staff judge advocate's recommendation. The recommendation of the staff judge advocate shall include such matters as the governor may prescribe by regulation and shall be served on the accused, who shall have five days from the date of receipt in which to submit any matter in response. The convening authority or other person taking action under this section, for good cause, may extend that period for up to an additional 20 days. Failure to object in the response to the recommendation or to any matter attached to the recommendation waives the right to object thereto.
(e) (1) The convening authority or other person taking action under this section, in such person's sole discretion, may order a proceeding in revision or a rehearing.
(2) A proceeding in revision may be ordered if there is an apparent error or omission in the record or if the record shows improper or inconsistent action by a court-martial with respect to the findings or sentence that can be rectified without material prejudice to the substantial rights of the accused. In no case, however, may a proceeding in revision:
(A) Reconsider a finding of not guilty of any specification or a ruling which amounts to a finding of not guilty;
(B) reconsider a finding of not guilty of any charge, unless there has been a finding of guilty under a specification laid under that charge, which sufficiently alleges a violation of some article of this chapter; or
(C) increase the severity of some article of the sentence unless the sentence prescribed for the offense is mandatory.
(3) A rehearing may be ordered by the convening authority or other person taking action under this section if such person disapproval of the findings and sentence and states the reasons for disapproval of the findings. If such person disapproves the findings and sentence and does not order a rehearing, such person shall dismiss the charges. A rehearing as to the findings may not be ordered where there is a lack of sufficient evidence in the record to support the findings. A rehearing as to the sentence may be ordered if the convening authority or other person taking action under this subsection disapproves the sentence.
History: L. 1988, ch. 191, § 38; July 1.
(b) The accused may withdraw an appeal at any time.
(c) A waiver of the right to appellate review or the withdrawal of an appeal under this section bars review under K.S.A. 48-2922 or subsection (a) of K.S.A. 48-2924.
History: L. 1988, ch. 191, § 39; July 1.
(2) An appeal of an order or ruling may not be taken unless the trial counsel provides the military judge with written notice of appeal from the order or ruling within 72 hours of the order or ruling. Such notice shall include a certification by the trial counsel that the appeal is not taken for the purpose of delay and, if the order or ruling appealed is one which excludes evidence, that the evidence excluded is substantial proof of a fact material in the proceeding.
(3) An appeal under this section shall be diligently prosecuted by appellate counsel.
(b) An appeal under this section shall be forwarded by a means prescribed under regulations of the governor for the adjutant general directly to the court of military review and shall, whenever practicable, have priority over all other proceedings before that court. In ruling on an appeal under this section, the court of military review may act only with respect to matters of law, notwithstanding subsection (c) of K.S.A. 48-2922.
(c) Any period of delay resulting from an appeal under this section shall be excluded in deciding any issue regarding denial of a speedy trial unless an appropriate authority determines that the appeal was filed solely for the purpose of delay with the knowledge that it was totally frivolous and without merit.
History: L. 1988, ch. 191, § 40; July 1.
History: L. 1988, ch. 191, § 41; July 1.
(1) Conclusions as to whether:
(A) The court had jurisdiction over the accused and the offense;
(B) the charge and specification stated an offense; and
(C) the sentence was within the limits prescribed as a matter of law.
(2) A response to each allegation of error made in writing by the accused.
(3) If the case is sent for action under subsection (b), a recommendation as to the appropriate action to be taken and an opinion as to whether corrective action is required as a matter of law.
(b) The record of trial and related documents in each case reviewed under subsection (a) shall be sent for action to the person exercising general court-martial jurisdiction over the accused at the time the court was convened, or to that person's successor in command, if:
(1) The judge advocate who reviewed the case recommends corrective action;
(2) the sentence approved under subsection (c) of K.S.A. 48-2916 extends to dismissal, a bad-conduct or dishonorable discharge or confinement for more than six months; or
(3) such action is otherwise required by regulations of the governor.
(c) (1) The person to whom the record of trial and related documents are sent under subsection (b) may:
(A) Disapprove or approve the findings or sentence, in whole or in part;
(B) remit, commute or suspend the sentence in whole or in part;
(C) except where the evidence was insufficient at the trial to support the findings, order a rehearing on the findings, on the sentence or on both; or
(D) dismiss the charges.
(2) If a rehearing is ordered but the convening authority finds a rehearing impracticable, the convening authority shall dismiss the charges.
(3) If the opinion of the judge advocate in the judge advocate's review under subsection (a) is that corrective action is required as a matter of law and if the person required to take action under subsection (b) does not take action that is at least as favorable to the accused as that recommended by the judge advocate, the record of trial and action thereon shall be sent to the judge advocate general for review under subsection (b) of K.S.A.. 48-2924.
History: L. 1988, ch. 191, § 42; July 1.
(b) Except as otherwise required by this code, all other records of trial and related documents shall be transmitted and disposed of as the governor may prescribe by regulation.
History: L. 1988, ch. 191, § 43; July 1.
(b) The judge advocate general shall refer to a court of military review the record in each case of trial by court-martial in which:
(1) The sentence, as approved, extends to dismissal of a commissioned officer, dishonorable or bad-conduct discharge or confinement for three or more months; and
(2) the right to appellate review has not been waived or an appeal has not been withdrawn under K.S.A. 48-2917.
(c) In a case referred to it, the court of military review may act only with respect to the findings and sentence as approved by the convening authority. It may affirm only such findings of guilty and the sentence, or such part or amount of the sentence, as it finds correct in law and fact and determines, on the basis of the entire record, should be approved. In considering the record, it may weigh the evidence, judge the credibility of witnesses and determine controverted questions of fact, recognizing that the trial court saw and heard the witnesses.
(d) If the court of military review sets aside the findings and sentence, it may, except where the setting aside is based on lack of sufficient evidence in the record to support the findings, order a rehearing. If it sets aside the findings and sentence and does not order a rehearing, it shall order that the charges be dismissed.
(e) The judge advocate general shall, unless there is to be further action by the governor, the adjutant general, the Kansas court of appeals or the Kansas supreme court, instruct the convening authority to take action in accordance with the decision of the court of military review. If the court of military review has ordered a rehearing but the convening authority finds a rehearing impracticable, the convening authority shall dismiss the charges.
(f) The governor shall prescribe uniform rules of procedure for courts of military review and shall periodically formulate policies and procedure in regard to review of court-martial cases in the office of the judge advocate general and by courts of military review.
(g) No member of a court of military review shall be required or, on the member's own initiative, be permitted to prepare, approve, disapprove, review or submit, with respect to any other member of the same or another court of military review, an effectiveness, fitness or efficiency report, or any other report or document used in whole or in part for the purpose of determining whether a member of the armed forces is qualified to be advanced in grade, or in determining the assignment or transfer of a member of the armed forces, or in determining whether a member of the armed forces shall be retained on active duty.
(h) No member of a court of military review shall be eligible to review the record of any trial if such member served as investigating officer in the case or served as a member of the court-martial before which such trial was conducted, or served as military judge, trial or defense counsel or reviewing officer of such trial.
History: L. 1988, ch. 191, § 44; July 1.
(1) All cases reviewed by a court of military review which the judge advocate general orders sent to the court of appeals for review; and
(2) all cases reviewed by a court of military review in which, upon petition of the accused and on good cause shown, the court of appeals has granted a review.
(b) The accused may petition the Kansas court of appeals for review of a decision of a court of military review within 60 days from the earlier of:
(1) The date on which the accused is notified of the decision of the court of military review; or
(2) the date on which a copy of the decision of the court of military review, after being served on appellate counsel of record for the accused, if any, is deposited in the United States mails for delivery by first class certified mail to the accused at an address provided by the accused or, if no such address has been provided by the accused, at the latest address listed for the accused in the accused's official service record. The court of appeals shall act upon such a petition promptly in accordance with the rules of the court.
(c) In any case reviewed by it, the Kansas court of appeals may act only with respect to the findings and sentence as approved by the convening authority and as affirmed or set aside as incorrect in law by the court of military review. In a case which the judge advocate general orders sent to the court of appeals, that action need be taken only with respect to the issues raised by the judge advocate general. In a case reviewed upon petition of the accused, that action need be taken only with respect to issues specified in the grant of review. The court of appeals shall take action only with respect to matters of law.
(d) If the Kansas court of appeals sets aside the findings and sentence, it may, except where the setting aside is based on lack of sufficient evidence in the record to support the findings, order a rehearing. If it sets aside the findings and sentence and does not order a rehearing, it shall order that the charges be dismissed.
(e) After it has acted on a case, the Kansas court of appeals may direct the judge advocate general to return the record to the court of military review for further review in accordance with the decision of the court. Otherwise, unless there is to be further action by the governor, the judge advocate general shall instruct the convening authority to take action in accordance with that decision. If the court has ordered a rehearing, but the convening authority finds a rehearing impracticable, the convening authority may dismiss the charges.
History: L. 1988, ch. 191, § 45; July 1.
(b) The findings or sentence, or both, in a court-martial case not reviewed under subsection (a) or under K.S.A. 48-2922 may be modified or set aside, in whole or in part, by the judge advocate general on the ground of newly discovered evidence, fraud on the court, lack of jurisdiction over the accused or the offense, error prejudicial to the substantial rights of the accused, or the appropriateness of the sentence. If such a case is considered upon application of the accused, the application must be filed in the office of the judge advocate general by the accused on or before the last day of the two-year period beginning on the date the sentence is approved under subsection (c) of K.S.A. 48-2916, unless the accused establishes good cause for failure to file within that time.
(c) If the judge advocate general sets aside the findings or sentence, the judge advocate general may, except when the setting aside is based on lack of sufficient evidence in the record to support the findings, order a rehearing. If the judge advocate general sets aside the findings and sentence and does not order a rehearing, the judge advocate general shall order that the charges be dismissed. If the judge advocate general orders a rehearing but the convening authority finds a rehearing impractical, the convening authority shall dismiss the charges.
History: L. 1988, ch. 191, § 46; July 1.
(b) Appellate government counsel shall represent the state of Kansas before the court of military review or the Kansas court of appeals when directed to do so by the judge advocate general. Appellate government counsel may represent the state before the Kansas supreme court in cases arising under this chapter when requested to do so by the attorney general.
(c) Appellate defense counsel shall represent the accused before the court of military review, the Kansas court of appeals or the Kansas supreme court:
(1) When requested by the accused; or
(2) when the state is represented by counsel.
(d) The accused has the right to be represented before the court of military review, the Kansas court of appeals, or the Kansas supreme court by civilian counsel if provided by the accused and at the accused's own expense.
(e) Military appellate counsel shall also perform such other functions in connection with the review of court-martial cases as the judge advocate directs.
History: L. 1988, ch. 191, § 47; July 1.
(b) (1) If a sentence extends to dismissal, or a dishonorable or bad-conduct discharge and if the right of the accused to appellate review is not waived, and an appeal is not withdrawn, under K.S.A. 48-2917 that part of the sentence extending to dismissal or a dishonorable or bad-conduct discharge may not be executed until there is a final judgment as to the legality of the proceedings and, with respect to dismissal, approval under subsection (a) as appropriate. A judgment as to legality of the proceedings is final in such cases when review is completed by a court of military review and:
(A) The time for the accused to file a petition for review by the Kansas court of appeals has expired and the accused has not filed a timely petition for such review and the case is not otherwise under review by that court;
(B) such a petition is rejected by the Kansas court of appeals; or
(C) review is completed in accordance with the judgment of the Kansas court of appeals.
(2) If a sentence extends to dismissal or a dishonorable or bad-conduct discharge and if the right of the accused to appellate review is waived, or an appeal is withdrawn, under K.S.A. 48-2917, that part of the sentence extending to dismissal or a bad-conduct or dishonorable discharge may not be executed until review of the case by a judge advocate, and any action on that review, under K.S.A. 48-2920 is completed. Any other part of a court-martial sentence may be ordered executed by the convening authority or other person acting on the case under K.S.A. 48-2916 when approved by such person under that section.
(c) The convening authority or other person acting on the case under K.S.A. 48-2916 may suspend the execution of any sentence or part thereof.
History: L. 1988, ch. 191, § 48; July 1.
(b) The record of the hearing and the recommendation of the officer having special court-martial jurisdiction shall be sent for action to the officer exercising general court-martial jurisdiction over the probationer. If the officer exercising such jurisdiction over the probationer vacates the suspension, any unexecuted part of the sentence, except a dismissal, shall be executed, subject to applicable restrictions in subsection (b) of K.S.A. 48-2926. The vacation of the suspension of a dismissal is not effective until approved by the adjutant general.
(c) The suspension of any other sentence may be vacated by any authority competent to convene, for the command in which the accused is serving or assigned, a court of the kind that imposed the sentence.
History: L. 1988, ch. 191, § 49; July 1.
History: L. 1988, ch. 191, § 50; July 1.
(b) The adjutant general may, for good cause, substitute an administrative form of discharge for a discharge or dismissal executed in accordance with the sentence of a court-martial.
History: L. 1988, ch. 191, § 51; July 1.
(b) If a previously executed sentence of dishonorable or bad-conduct discharge is not imposed on a new trial, the adjutant general shall substitute therefor a form of discharge authorized for administrative issuance unless the accused is to serve out the remainder of this enlistment.
(c) If a previously executed sentence of dismissal is not imposed on a new trial, the adjutant general shall substitute therefor a form of discharge authorized for administrative issue, and the commissioned officer dismissed by the sentence may be reappointed by the governor alone to such commissioned grade and with such rank as in the opinion of the governor that former officer would have attained had such former officer not been dismissed. The reappointment of such a former officer shall be without regard to the existence of a vacancy and shall affect the promotion status of other officers only insofar as the governor may direct. All time between the dismissal and the reappointment shall be considered as actual service for all purposes, including the right to pay and allowances.
History: L. 1988, ch. 191, § 52; July 1.
History: L. 1988, ch. 191, § 53; July 1.
History: L. 1988, ch. 191, § 54; July 1.