Chapter 322

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.

322.0505(4) (4) Subsection (3) does not apply to a court-martial composed of a military judge only. In the case of a court-martial composed of a military judge only or a summary court-martial officer, whenever mental disease or defect of the accused with respect to an offense is properly at issue, the military judge or summary court-martial officer shall find the accused any one of the following:

322.0505(4)(a) (a) Guilty.

322.0505(4)(b) (b) Not guilty.

322.0505(4)(c) (c) Not guilty by reason of mental disease or defect.

322.0505(5) (5) Notwithstanding the provisions of s. 322.052, the accused shall be found not guilty by reason of mental disease or defect if any of the following apply:

322.0505(5)(a) (a) A majority of the members of the court-martial present at the time the vote is taken determines that the defense of mental disease or defect has been established.

322.0505(5)(b) (b) In the case of a court-martial composed of a military judge only or a summary court-martial officer, the military judge or summary court-martial officer determines that the defense of mental disease or defect has been established.

322.0505 History History: 2007 a. 200; 2009 a. 179.

322.051 322.051 Article 51 — Voting and rulings.

322.051(1) (1) Voting by members of a general or special court-martial on the findings and on the sentence shall be by secret written ballot. The junior member of the court shall count the votes. The count shall be checked by the president, who shall as soon as possible announce the result of the ballot to the members of the court.

322.051(2) (2) The military judge shall rule upon all questions of law and all interlocutory questions arising during the proceedings. Any ruling made by the military judge upon any question of law or any interlocutory question other than the factual issue of mental disease or defect of the accused is final and constitutes the ruling of the court. However, the military judge may change the ruling at any time during the trial. Unless the ruling is final, if any member objects, the court shall be cleared and closed and the question decided by a voice vote as provided in s. 322.052, beginning with the junior in rank.

322.051(3) (3) Before a vote is taken on the findings, the military judge shall, in the presence of the accused and counsel, instruct the members of the court as to the elements of the offense and charge them with all of the following:

322.051(3)(a) (a) That the accused shall be presumed to be innocent until his or her guilt is established by legal and competent evidence beyond reasonable doubt.

322.051(3)(b) (b) That, in the case being considered, if there is a reasonable doubt as to the guilt of the accused, the doubt must be resolved in favor of the accused and the accused must be acquitted.

322.051(3)(c) (c) That, if there is a reasonable doubt as to the degree of guilt, the finding shall be in a lower degree as to which there is no reasonable doubt.

322.051(3)(d) (d) That the burden of proof to establish the guilt of the accused beyond reasonable doubt is upon the state.

322.051(4) (4) Subsections (1), (2), and (3) do not apply to a court-martial composed of a military judge only. The military judge of a court-martial shall determine all questions of law and fact arising during the proceedings and, if the accused is convicted, adjudge an appropriate sentence. The military judge of a court-martial shall make a general finding and shall in addition, on request, find the facts specially. If an opinion or memorandum of decision is filed, it will be sufficient if the findings of fact appear.

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

322.052 322.052 Article 52 — Number of votes required.

322.052(1) (1) No person may be convicted of an offense except as provided in s. 322.045 (2) or s. 322.051 (4) or by the concurrence of two-thirds of the members present at the time the vote is taken.

322.052(2) (2) All other questions to be decided by the members of a general or special court-martial shall be determined by a majority vote, but a determination to reconsider a sentence, with a view toward decreasing it, may be made by any lesser vote which indicates that the reconsideration is not opposed by the number of votes required for that finding or sentence. A tie vote on a challenge disqualifies the member challenged. A tie vote on a motion relating to the question of the accused’s mental disease or defect is a determination against the accused. A tie vote on any other question is a determination in favor of the accused.

322.052 History History: 2007 a. 200.

322.053 322.053 Article 53 — Court to announce action. A court-martial shall announce its findings and sentence to the parties as soon as determined.

322.053 History History: 2007 a. 200.

322.054 322.054 Article 54 — Record of trial.

322.054(1) (1) Each general and special court-martial shall keep a separate record of the proceedings in each case brought before it, and the record shall be authenticated by the signature of the military judge. If the record cannot be authenticated by the military judge by reason of his or her death, disability, or absence, it shall be authenticated by the signature of the trial counsel or by that of a member, if the trial counsel is unable to authenticate it by reason of his or her death, disability, or absence. In a court-martial consisting of only a military judge, the record shall be authenticated by the court reporter under the same conditions which would impose a duty on a member under this subsection.