Chapter 322

322.038(2)(d) (d) If the accused is represented by civilian counsel, military counsel detailed or selected under par. (c) shall act as associate counsel unless excused by the military judge at the request of the accused.

322.038(2)(e) (e) Except as provided under par. (f), if the accused is represented by military counsel of his or her own selection under par. (c) 2., any military counsel detailed under par. (c) 1. shall be excused.

322.038(2)(f) (f) The accused is not entitled to be represented by more than one military counsel. However, the person authorized under regulations prescribed under s. 322.027 to detail counsel, in that person’s sole discretion may do any of the following:

322.038(2)(f)1. 1. Detail additional military counsel as assistant defense counsel.

322.038(2)(f)2. 2. If the accused is represented by military counsel of the accused’s own selection under par. (c) 2., approve a request from the accused that military counsel detailed under par. (c) 1. act as associate defense counsel.

322.038(2)(g) (g) The senior force judge advocate of the same force of which the accused is a member, shall determine whether the military counsel selected by an accused is reasonably available.

322.038(3) (3) In any court-martial proceeding resulting in a conviction, the defense counsel may do any of the following:

322.038(3)(a) (a) Forward for attachment to the record of proceedings a brief of matters as counsel determines should be considered in behalf of the accused on review, including any objection to the contents of the record which counsel considers appropriate.

322.038(3)(b) (b) Assist the accused in the submission of any matter under s. 322.060.

322.038(3)(c) (c) Take other action authorized by this code.

322.038 History History: 2007 a. 200; 2009 a. 179.

322.039 322.039 Article 39 — Sessions.

322.039(1) (1) At any time after the service of charges which have been referred for trial to a court-martial composed of a military judge and members, the military judge may, subject to s. 322.035, call the court into session without the presence of the members for the purpose of any of the following:

322.039(1)(a) (a) Hearing and determining motions raising defenses or objections which are capable of determination without trial of the issues raised by a plea of not guilty.

322.039(1)(b) (b) Hearing and ruling upon any matter which may be ruled upon by the military judge under this code, whether or not the matter is appropriate for later consideration or decision by the members of the court.

322.039(1)(c) (c) Holding the arraignment and receiving the pleas of the accused.

322.039(1)(d) (d) Performing any other procedural function which does not require the presence of the members of the court under this code.

322.039(2) (2) These proceedings shall be conducted in the presence of the accused, the defense counsel, and the trial counsel and shall be made a part of the record. These proceedings may be conducted notwithstanding the number of court members and without regard to s. 322.029.

322.039(3) (3) When the members of a court-martial deliberate or vote, only the members may be present. All other proceedings, including any other consultation of the members of the court with counsel or the military judge, shall be made a part of the record and shall be in the presence of the accused, the defense counsel, the trial counsel, and the military judge.

322.039 History History: 2007 a. 200.

322.040 322.040 Article 40 — Continuances. The military judge of a court-martial or a summary court-martial may, for reasonable cause, grant a continuance to any party for such time, and as often, as may appear to be just.

322.040 History History: 2007 a. 200; 2009 a. 179.

322.041 322.041 Article 41 — Challenges.

322.041(1) (1) 

322.041(1)(a) (a) The military judge and members of a general or special court-martial may be challenged by the accused or the trial counsel for cause stated to the court. The military judge or the court shall determine the relevancy and validity of challenges for cause and may not receive a challenge to more than one person at a time. Challenges by the trial counsel shall ordinarily be presented and decided before those by the accused are offered.

322.041(1)(b) (b) If exercise of a challenge for cause reduces the court below the minimum number of members required by s. 322.016, all parties shall, notwithstanding s. 322.029, either exercise or waive any challenge for cause then apparent against the remaining members of the court before additional members are detailed to the court. However, peremptory challenges shall not be exercised at that time.

322.041(2) (2) 

322.041(2)(a) (a) Each accused and the trial counsel are entitled initially to one peremptory challenge of members of the court. The military judge may not be challenged except for cause.

322.041(2)(b) (b) If exercise of a peremptory challenge reduces the court below the minimum number of members required by s. 322.016, the parties shall, notwithstanding s. 322.029, either exercise or waive any remaining peremptory challenge, not previously waived, against the remaining members of the court before additional members are detailed to the court.

322.041(2)(c) (c) Whenever additional members are detailed to the court, and after any challenges for cause against additional members are presented and decided, each accused and the trial counsel are entitled to one peremptory challenge against members not previously subject to peremptory challenge.

322.041 History History: 2007 a. 200.

322.042 322.042 Article 42 — Oaths or affirmations.

322.042(1) (1) Before performing their respective duties, military judges, general and special courts-martial members, trial counsel, defense counsel, reporters, and interpreters shall take an oath or affirmation in the presence of the accused to perform their duties faithfully. The form of the oath or affirmation, the time and place of the taking, the manner of recording the same, and whether the oath or affirmation shall be taken for all cases in which these duties are to be performed or for a particular case, shall be as prescribed in regulation or as provided by law. These regulations may provide that an oath or affirmation to perform faithfully the duties as a military judge, trial counsel, or defense counsel may be taken at any time by any judge advocate or other person certified or designated to be qualified or competent for the duty, and if an oath or affirmation is taken, it need not again be taken at the time the judge advocate or other person is detailed to that duty.

322.042(2) (2) Each witness before a court-martial shall be examined under oath or affirmation.

322.042 History History: 2007 a. 200.

322.043 322.043 Article 43 — Statute of limitations.

322.043(1) (1) Except as otherwise provided in this section, a person charged with any offense is not liable to be tried by court-martial or punished under s. 322.015 if the offense was committed more than 3 years before the receipt of sworn charges and specifications by an officer exercising court-martial jurisdiction over the command or before the imposition of punishment under s. 322.015.

322.043(2) (2) Periods in which the accused is absent without authority or fleeing from justice shall be excluded in computing the period of limitation prescribed in this section.

322.043(3) (3) Periods in which the accused was absent from territory in which the state has the authority to apprehend him or her, or in the custody of civil authorities, or in the hands of the enemy, shall be excluded in computing the period of limitation prescribed in this section.

322.043(4) (4) When the United States is at war based on a congressional declaration or by presidential declaration under the Global War on Terror, the running of any statute of limitations is suspended until 2 years after the termination of hostilities, as proclaimed by the president or by a joint resolution of congress, and the suspension is applicable to any offense under this code under any of the following circumstances:

322.043(4)(a) (a) The offense involves fraud or attempted fraud against the United States, any state, or any agency of either in any manner, whether by conspiracy or not.

322.043(4)(b) (b) The offense is committed in connection with the acquisition, care, handling, custody, control, or disposition of any real or personal property of the United States or any state.

322.043(4)(c) (c) The offense is committed in connection with the negotiation, procurement, award, performance, payment, interim financing, cancellation, or other termination or settlement, of any contract, subcontract, or purchase order which is connected with or related to the prosecution of the war, or with any disposition of termination inventory by any war contractor or government agency.

322.043(5) (5) 

322.043(5)(a) (a) If charges or specifications are dismissed as defective or insufficient for any cause and the period prescribed by the applicable statute of limitations has expired, or will expire within 180 days after the date of dismissal of the charges and specifications, trial and punishment under new charges and specifications are not barred by the statute of limitations if the conditions specified in par. (b) are met.

322.043(5)(b) (b) The conditions referred to in par. (a) are that the new charges and specifications satisfy all of the following:

322.043(5)(b)1. 1. Be received by an officer exercising summary court-martial jurisdiction over the command within 180 days after the dismissal of the charges or specifications.

322.043(5)(b)2. 2. Allege the same acts or omissions that were alleged in the dismissed charges or specifications, or allege acts or omissions that were included in the dismissed charges or specifications.

322.043 History History: 2007 a. 200; 2009 a. 179.

322.044 322.044 Article 44 — Former jeopardy.

322.044(1) (1) No person may, without his or her consent, be tried a 2nd time for the same offense.

322.044(2) (2) No proceeding in which an accused has been found guilty by a court-martial upon any charge or specification is a trial under this section until the finding of guilty has become final after review of the case has been fully completed.

322.044(3) (3) A proceeding which, after the introduction of evidence but before a finding, is dismissed or terminated by the convening authority or on motion of the prosecution for failure of available evidence or witnesses without any fault of the accused is a trial under this section.

322.044 History History: 2007 a. 200.

322.045 322.045 Article 45 — Pleas of the accused.

322.045(1) (1) If an accused after arraignment makes an irregular pleading, or after a plea of guilty sets up matter inconsistent with the plea, or if it appears that the accused has entered the plea of guilty improvidently or through lack of understanding of its meaning and effect, or if the accused fails or refuses to plead, a plea of not guilty shall be entered in the record, and the court shall proceed as though the accused had pleaded not guilty.

322.045(2) (2) With respect to any charge or specification to which a plea of guilty has been made by the accused and accepted by the military judge or by a court-martial without a military judge, a finding of guilty of the charge or specification may be entered immediately without vote. This finding shall constitute the finding of the court unless the plea of guilty is withdrawn prior to announcement of the sentence, in which event, the proceedings shall continue as though the accused had pleaded not guilty.

322.045 History History: 2007 a. 200.

322.046 322.046 Article 46 — Opportunity to obtain witnesses and other evidence. The trial counsel, the defense counsel, and the court-martial shall have equal opportunity to obtain witnesses and other evidence as prescribed by regulations and provided by law. Process issued in court-martial cases to compel witnesses to appear and testify and to compel the production of other evidence shall apply the principles of law and the rules of courts-martial generally recognized in military criminal cases in the courts of the armed forces of the United States, but which may not be contrary to or inconsistent with this code. Process shall run to any part of the United States, or the territories, commonwealths, and possessions, and may be executed by civil officers as prescribed by the laws of the place where the witness or evidence is located or of the United States.

322.046 History History: 2007 a. 200.

322.047 322.047 Article 47 — Refusal to appear or testify.

322.047(1) (1) Any person not subject to this code may be punished by the military court in the same manner as a court of the state, if all of the following apply:

322.047(1)(a) (a) The person has been duly subpoenaed to appear as a witness or to produce books and records before a court-martial or court of inquiry, or before any military or civil officer designated to take a deposition to be read in evidence before a court.

322.047(1)(b) (b) The person has been duly paid or tendered the fees and mileage of a witness at the rates allowed to witnesses attending a court of the state.

322.047(1)(c) (c) The person willfully neglects or refuses to appear, or refuses to qualify as a witness or to testify or to produce any evidence which that person may have been legally subpoenaed to produce.

322.047(2) (2) The fees and mileage of witnesses shall be advanced or paid out of the appropriations for the compensation of witnesses.

322.047 History History: 2007 a. 200; 2009 a. 179.

322.048 322.048 Article 48 — Contempt. A military judge may punish for contempt any person who uses any menacing word, sign, or gesture in its presence, or who disturbs its proceedings by any riot or disorder. A person subject to this code may be punished for contempt by confinement not to exceed 30 days or a fine of $100, or both. A person not subject to this code may be punished for contempt by a military court in the same manner as a court of the state.

322.048 History History: 2007 a. 200.

322.049 322.049 Article 49 — Depositions.

322.049(1) (1) At any time after charges have been signed as provided in s. 322.030, any party may take oral or written depositions unless the military judge or summary court-martial officer hearing the case or, if the case is not being heard, an authority competent to convene a court-martial for the trial of those charges forbids it for good cause.

322.049(2) (2) The party at whose instance a deposition is to be taken shall give to every other party reasonable written notice of the time and place for taking the deposition.

322.049(3) (3) A duly authenticated deposition taken upon reasonable notice to the other parties, so far as otherwise admissible under the rules of evidence, may be read in evidence or, in the case of audiotape, videotape, digital image or file, or similar material, may be played in evidence before any military court, if any of the following apply:

322.049(3)(a) (a) The witness resides or is beyond the state in which the court is ordered to sit, or beyond one hundred miles from the place of trial or hearing.

322.049(3)(b) (b) The witness by reason of death, age, sickness, bodily infirmity, imprisonment, military necessity, nonamenability to process, or other reasonable cause, is unable or refuses to appear and testify in person at the place of trial or hearing.

322.049(3)(c) (c) The present whereabouts of the witness are unknown.

322.049 History History: 2007 a. 200; 2009 a. 179.

322.050 322.050 Article 50 — Admissibility of records of courts of inquiry.

322.050(1) (1) In any case not extending to the dismissal of a commissioned officer, the sworn testimony, contained in the duly authenticated record of proceedings of a court of inquiry, of a person whose oral testimony cannot be obtained, may, if otherwise admissible under the rules of evidence, be read in evidence by any party before a court-martial if the accused was a party before the court of inquiry and if the same issue was involved or if the accused consents to the introduction of evidence.

322.050(2) (2) Testimony may be read in evidence only by the defense in cases extending to the dismissal of a commissioned officer.

322.050(3) (3) Testimony may also be read in evidence before a court of inquiry.

322.050 History History: 2007 a. 200.

322.0505 322.0505 Article 50a — Defense of mental disease or defect.

322.0505(1) (1) The accused has an affirmative defense of mental disease or defect in a trial by court-martial if, at the time of the commission of the acts constituting the offense, the accused, as a result of a mental disease or defect, lacked substantial capacity either to appreciate the wrongfulness of his or her conduct or to conform his or her conduct to the requirements of the law. Mental disease or defect does not otherwise constitute a defense.

322.0505(2) (2) The accused has the burden of proving the defense of mental disease or defect to a reasonable certainty by the greater weight of the credible evidence.

322.0505(3) (3) Whenever lack of mental disease or defect of the accused with respect to an offense is properly at issue, the military judge shall instruct the members of the military court as to the defense of mental disease or defect under this section and charge them to find the accused any one of the following:

322.0505(3)(a) (a) Guilty.

322.0505(3)(b) (b) Not guilty.

322.0505(3)(c) (c) Not guilty by reason of mental disease or defect.