Chapter 322

POST-TRIAL PROCEDURE AND
REVIEW OF COURTS-MARTIAL

322.059 322.059 Article 59 — Error of law; lesser included offense.

322.059(1) (1) A finding or sentence of a court-martial may not be held incorrect on the ground of an error of law unless the error materially prejudices the substantial rights of the accused.

322.059(2) (2) 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.

322.059 History History: 2007 a. 200.

322.060 322.060 Article 60 — Action by the convening authority.

322.060(1) (1) The findings and sentence of a court-martial shall be reported promptly to the convening authority after the announcement of the sentence.

322.060(2) (2) The accused may submit to the convening authority matters for consideration by the convening authority with respect to the findings and the sentence. Any submission shall be in writing. Except in a summary court-martial case, a submission shall be made within 10 days after the accused has been given an authenticated record of trial and, if applicable, the recommendation of a judge advocate under sub. (9). In a summary court-martial case, a submission shall be made within 7 days after the sentence is announced.

322.060(3) (3) If the accused shows that additional time is required for the accused to submit matters, the convening authority or other person taking action under this section, for good cause, may extend the applicable period for not more than an additional 20 days.

322.060(4) (4) 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.

322.060(5) (5) The accused may waive the right to make a submission to the convening authority under sub. (2). A waiver must be made in writing and may not be revoked. The time within which the accused may make a submission under this subsection shall be deemed to have expired upon the submission of a waiver to the convening authority.

322.060(6) (6) 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. If it is impractical for the convening authority to act, the convening authority shall forward the case to a person exercising general court-martial jurisdiction who may take action under this section.

322.060(7) (7) 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. Action may be taken only after consideration of any matters submitted by the accused under sub. (2) or after the time for submitting matters expires, whichever is earlier. The convening authority or other person taking action, in that person’s sole discretion may approve, disapprove, commute, or suspend the sentence in whole or in part.

322.060(8) (8) Action on the findings of a court-martial by the convening authority or other person acting on the sentence is not required. However, the person, in the person’s sole discretion may do any of the following:

322.060(8)(a) (a) Dismiss any charge or specification by setting aside a finding of guilty.

322.060(8)(b) (b) Change a finding of guilty to a charge or specification to a finding of guilty to an offense that is a lesser included offense of the offense stated in the charge or specification.

322.060(9) (9) Before acting under this section on any general or special court-martial case in which there is a finding of guilt, the convening authority or other person taking action under this section shall obtain and consider the written recommendation of a judge advocate. The convening authority or other person taking action under this section shall refer the record of trial to the judge advocate, and the judge advocate shall use the record in the preparation of the recommendation. The recommendation of the judge advocate shall include matters as may be prescribed by regulation and shall be served on the accused, who may submit any matter in response. Failure to object in the response to the recommendation or to any matter attached to the recommendation waives the right to object.

322.060(10) (10) The convening authority or other person taking action under this section, in the person’s sole discretion, may order a proceeding in revision or a rehearing.

322.060(11) (11) 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 perform any of the following:

322.060(11)(a) (a) Reconsider a finding of not guilty of any specification or a ruling which amounts to a finding of not guilty.

322.060(11)(b) (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 section of this code.

322.060(11)(c) (c) Increase the severity of the sentence unless the sentence prescribed for the offense is mandatory.

322.060(12) (12) A rehearing may be ordered by the convening authority or other person taking action under this section if that person disapproves the findings and sentence and states the reasons for disapproval of the findings. If a person disapproves the findings and sentence and does not order a rehearing, that 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.

322.060 History History: 2007 a. 200.

322.061 322.061 Article 61 — Withdrawal of appeal.

322.061(1) (1) In each case subject to appellate review under this code, the accused may file with the convening authority a statement expressly withdrawing the right of the accused to appeal. A withdrawal shall be signed by both the accused and his or her defense counsel and must be filed in accordance with appellate procedures under ch. 809.

322.061(2) (2) The accused may withdraw an appeal at any time in accordance with appellate procedures under ch. 809.

322.061 History History: 2007 a. 200.

322.062 322.062 Article 62 — Appeal by the state.

322.062(1) (1) In a trial by court-martial in which a punitive discharge may be adjudged, the state may appeal any of the following, other than a finding of not guilty with respect to the charge or specification by the members of the court-martial, or by a judge in a bench trial, so long as it is not made in reconsideration:

322.062(1)(a) (a) An order or ruling of the military judge which terminates the proceedings with respect to a charge or specification.

322.062(1)(b) (b) An order or ruling which excludes evidence that is substantial proof of a fact material in the proceeding.

322.062(1)(c) (c) An order or ruling which directs the disclosure of classified information.

322.062(1)(d) (d) An order or ruling which imposes sanctions for nondisclosure of classified information.

322.062(1)(e) (e) A refusal of the military judge to issue a protective order sought by the State to prevent the disclosure of classified information.

322.062(1)(f) (f) A refusal by the military judge to enforce an order described in par. (e) that has previously been issued by appropriate authority.

322.062(2) (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. 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.

322.062(3) (3) An appeal under this section shall be diligently prosecuted as provided by law.

322.062(4) (4) An appeal under this section shall be forwarded to the court prescribed in s. 322.0675. In ruling on an appeal under this section, that court may act only with respect to matters of law.

322.062(5) (5) 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.

322.062 History History: 2007 a. 200.

322.063 322.063 Article 63 — Rehearings. Each rehearing under this code shall take place before a court-martial composed of members not members of the court-martial which first heard the case. Upon a rehearing the accused may not be tried for any offense of which he or she was found not guilty by the first court-martial, and no sentence in excess of or more severe than the original sentence may be approved, unless the sentence is based upon a finding of guilty of an offense not considered upon the merits in the original proceedings, or unless the sentence prescribed for the offense is mandatory. If the sentence approved after the first court-martial was in accordance with a pretrial agreement and the accused at the rehearing changes a plea with respect to the charges or specifications upon which the pretrial agreement was based, or otherwise does not comply with the pretrial agreement, the approved sentence as to those charges or specifications may include any punishment not in excess of that lawfully adjudged at the first court-martial.

322.063 History History: 2007 a. 200.

322.064 322.064 Article 64 — Review by the senior force judge advocate.

322.064(1) (1) Each general and special court-martial case in which there has been a finding of guilty shall be reviewed by the senior force judge advocate, or a designee. The senior force judge advocate, or designee, may not review a case under this subsection if that person has acted in the same case as an accuser, investigating officer, member of the court, military judge, or counsel or has otherwise acted on behalf of the prosecution or defense. The senior force judge advocate’s review shall be in writing and shall contain all of the following:

322.064(1)(a) (a) Conclusions regarding all of the following:

322.064(1)(a)1. 1. Whether the court had jurisdiction over the accused and the offense.

322.064(1)(a)2. 2. Whether the charge and specification stated an offense.

322.064(1)(a)3. 3. Whether the sentence was within the limits prescribed as a matter of law.

322.064(1)(b) (b) A response to each allegation of error made in writing by the accused.

322.064(1)(c) (c) If the case is sent for action under sub. (2), 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.

322.064(2) (2) The record of trial and related documents in each case reviewed under sub. (1) shall be sent for action to the adjutant general, under any of the following circumstances:

322.064(2)(a) (a) The judge advocate who reviewed the case recommends corrective action.

322.064(2)(b) (b) The sentence approved under s. 322.060 extends to dismissal, a bad-conduct or dishonorable discharge, or confinement for more than 6 months.

322.064(2)(c) (c) Action is otherwise required by regulations of the adjutant general.

322.064(3) (3) The adjutant general may do any of the following:

322.064(3)(a) (a) Disapprove or approve the findings or sentence, in whole or in part.

322.064(3)(b) (b) Remit, commute, or suspend the sentence in whole or in part.

322.064(3)(c) (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.

322.064(3)(d) (d) Dismiss the charges.

322.064(4) (4) If a rehearing is ordered but the convening authority finds a rehearing impracticable, the convening authority shall dismiss the charges.

322.064(5) (5) If the opinion of the senior force judge advocate, or designee, in the senior force judge advocate’s review under sub. (1) is that corrective action is required as a matter of law and if the adjutant general 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 governor for review and action as deemed appropriate.

322.064(6) (6) The senior force judge advocate, or a designee, may review any case in which there has been a finding of not guilty of all charges and specifications. The senior force judge advocate, or designee, may not review a case under this subsection if that person has acted in the same case as an accuser, investigating officer, member of the court, military judge, or counsel or has otherwise acted on behalf of the prosecution or defense. The senior force judge advocate’s review shall be limited to questions of subject matter jurisdiction.

322.064(7) (7) The record of trial and related documents in each case reviewed under sub. (4) shall be sent for action to the adjutant general.

322.064(8) (8) The adjutant general may do any of the following:

322.064(8)(a) (a) When subject matter jurisdiction is found to be lacking, void the court-martial from inception, with or without prejudice to the government, as the adjutant general deems appropriate.

322.064(8)(b) (b) Return the record of trial and related documents to the senior force judge advocate for appeal by the government as provided by law.

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

322.065 322.065 Article 65 — Disposition of records after review by the convening authority. Except as otherwise required by this code, all records of trial and related documents shall be transmitted and disposed of as prescribed by regulation and provided by law.

322.065 History History: 2007 a. 200.

322.0675 322.0675 Article 67a — Review by state appellate authority. Decisions of a court-martial are from a court with jurisdiction to issue felony convictions, and appeals are to the Wisconsin court of appeals, District IV and, if necessary, to the Wisconsin Supreme Court. The appellate procedures to be followed shall be those provided under ch. 809.

322.0675 History History: 2007 a. 200; 2009 a. 179.

322.0675 Annotation In reviewing sentences under this section, a Wisconsin appellate court will apply the same deferential review it normally applies to sentencing. When it engages in appellate review under this section, the court is to conduct appellate review as would a military appellate court, following the federal Uniform Code of Military Justice and the federal military law interpreting that code, so far as it is “practical” to do so. Applying the relevant dictionary definitions, Wisconsin appellate judges are unable to conduct the sort of independent review required by federal military law in a useful and unspeculative manner. State v. Riemer, 2017 WI App 48, 377 Wis. 2d 189, 900 N.W.2d 326, 16-0398.

322.070 322.070 Article 70 — Appellate counsel.

322.070(1) (1) The senior force judge advocate shall detail a judge advocate as appellate government counsel to represent the state in the review or appeal of cases specified in s. 322.0675 and before any federal court when requested to do so by the state attorney general. Appellate government counsel shall be an attorney licensed to practice in this state or a member in good standing of the bar of the highest court of the state to which the appeal is taken.

322.070(2) (2) Upon an appeal by the state, an accused has the right to be represented by detailed military counsel before any reviewing authority and before any appellate court.

322.070(3) (3) Upon the appeal by an accused, the accused has the right to be represented by military counsel before any reviewing authority.

322.070(4) (4) Upon the request of an accused entitled to be so represented, the state senior force judge advocate shall appoint a judge advocate to represent the accused in the review or appeal of cases specified in subs. (2) and (3).

322.070(5) (5) An accused may be represented by civilian appellate counsel at no expense to the state.

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

322.071 322.071 Article 71 — Execution of sentence; suspension of sentence.

322.071(1) (1) If the sentence of the court-martial 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 s. 322.061, 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. A judgment as to the legality of the proceedings is final in cases when review is completed by an appellate court prescribed in s. 322.0675, and is deemed final by the law of state where the judgment was had.

322.071(2) (2) If the sentence of the court-martial 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 s. 322.061, that part of the sentence extending to dismissal or a dishonorable or bad-conduct discharge may not be executed until review of the case by the senior force judge advocate and any action on that review under s. 322.064 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 s. 322.060 when so approved under that section.

322.071 History History: 2007 a. 200.

322.072 322.072 Article 72 — Vacation of suspension.

322.072(1) (1) Before the vacation of the suspension of a special court-martial sentence, which as approved includes a bad-conduct discharge, or of any general court-martial sentence, the officer having special court-martial jurisdiction over the probationer shall hold a hearing on an alleged violation of probation. The probationer shall be represented at the hearing by military counsel if the probationer so desires.

322.072(2) (2) 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 vacates the suspension, any unexecuted part of the sentence, except a dismissal, shall be executed, subject to applicable restrictions in this code.

322.072(3) (3) 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.

322.072 History History: 2007 a. 200.