Chapter 322

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 This finding shall constitute the finding of the court unless the plea of guilty is withdrawn prior to announcement of the sentence, in which event, the proceedings shall continue as though the accused had pleaded not guilty.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.

322.054(2) (2) A complete verbatim record of the proceedings and testimony shall be prepared in each general and special court-martial case resulting in a conviction, and in all other court-martial cases, the record shall contain matters as may be prescribed by regulations.

322.054(3) (3) Each summary court-martial shall keep a separate record of the proceedings in each case, and the record shall be authenticated in the manner as may be prescribed by regulations.

322.054(4) (4) A copy of the record of the proceedings of each general and special court-martial shall be given to the accused as soon as it is authenticated.

322.054 History History: 2007 a. 200.

subch. VIII of ch. 322 SUBCHAPTER VIII

SENTENCES

322.055 322.055 Article 55 — Cruel and unusual punishments prohibited. Punishment by flogging, or by branding, marking, or tattooing on the body, or any other cruel or unusual punishment may not be adjudged by a court-martial or inflicted upon any person subject to this code. The use of irons, single or double, except for the purpose of safe custody, is prohibited.

322.055 History History: 2007 a. 200.

322.056 322.056 Article 56 — Maximum limits.

322.056(1) (1) The punishment which a court-martial may direct for an offense may not exceed 10 years confinement.

322.056(2) (2) A conviction by a general court-martial of any offense for which an accused may receive a sentence of confinement for more than 1 year is a felony offense.

322.056(3) (3) Except for convictions by a summary court-martial, all other offenses are misdemeanors.

322.056(4) (4) A conviction by a summary court-martial is not a criminal conviction.

322.056(5) (5) The limits of punishment for violations of the punitive sections under Subch. X shall be those under the Uniform Code of Military Justice, unless otherwise prescribed by the governor according to ss. 322.018 to 322.020, but under no instance shall any punishment exceed that authorized by this code.

322.056 History History: 2007 a. 200; 2013 a. 165 s. 115; 2023 a. 47.

322.057 322.057 Article 57 — Effective date of sentences.

322.057(1) (1) Whenever a sentence of a court-martial as lawfully adjudged and approved includes a forfeiture of pay or allowances in addition to confinement not suspended, the forfeiture may apply to pay or allowances becoming due on or after the date the sentence is approved by the convening authority. No forfeiture may extend to any pay or allowances accrued before that date.

322.057(2) (2) Any period of confinement included in a sentence of a court-martial begins to run from the date the sentence is adjudged by the court-martial, but periods during which the sentence to confinement is suspended or deferred shall be excluded in computing the service of the term of confinement.

322.057(3) (3) All other sentences of courts-martial are effective on the date ordered executed.

322.057 History History: 2007 a. 200.

322.0575 322.0575 Article 57a — Deferment of sentences.

322.0575(1) (1) On application by an accused who is under sentence to confinement that has not been ordered executed, the convening authority or, if the accused is no longer under that person’s jurisdiction, the person exercising general court-martial jurisdiction over the command to which the accused is currently assigned, may in that person’s sole discretion defer service of the sentence to confinement. The deferment shall terminate when the sentence is ordered executed. The deferment may be rescinded at any time by the person who granted it or, if the accused is no longer under that person’s jurisdiction, by the person exercising general court-martial jurisdiction over the command to which the accused is currently assigned.