AB400: Bill Text

AB400,121,5 (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.

AB400,121,8 (2) (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.

AB400,121,13 (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.

AB400,121,17 (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.

AB400,122,5 322.042 Article 42—Oaths or affirmations. (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.

AB400,122,7 (2) Each witness before a court-martial shall be examined under oath or affirmation.

AB400,122,13 322.043 Article 43—Statute of limitations. (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.

AB400,122,16 (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.

AB400,122,20 (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.

AB400,122,25 (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 is applicable to any offense under this code under any of the following circumstances:

AB400,123,2 (a) Involving fraud or attempted fraud against the United States, any state, or any agency of either in any manner, whether by conspiracy or not.

AB400,123,5 (b) 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.

AB400,123,10 (c) 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.

AB400,123,15 (5) (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.

AB400,123,17 (b) The conditions referred to in par. (a) are that the new charges and specifications satisfy all of the following:

AB400,123,19 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.

AB400,123,22 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.

AB400,123,24 322.044 Article 44—Former jeopardy. (1) No person may, without his or her consent, be tried a 2nd time for the same offense.

AB400,124,3 (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.

AB400,124,7 (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.

AB400,124,13 322.045 Article 45—Pleas of the accused. (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.

AB400,124,20 (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.

AB400,125,6 322.046 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.

AB400,125,9 322.047 Article 47—Refusal to appear or testify. (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 to that person:

AB400,125,12 (a) 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.

AB400,125,14 (b) 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.

AB400,125,17 (c) 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.

AB400,125,19 (2) The fees and mileage of witnesses shall be advanced or paid out of the appropriations for the compensation of witnesses.

AB400,125,25 322.048 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.

AB400,126,5 322.049 Article 49—Depositions. (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.

AB400,126,7 (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.

AB400,126,12 (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:

AB400,126,14 (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;

AB400,126,18 (b) The witness by reason of death, age, sickness, bodily infirmity, imprisonment, military necessity, non amenability to process, or other reasonable cause, is unable or refuses to appear and testify in person at the place of trial or hearing.

AB400,126,19 (c) The present whereabouts of the witness is unknown.

AB400,127,2 322.050 Article 50—Admissibility of records of courts of inquiry. (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.

AB400,127,4 (2) Testimony may be read in evidence only by the defense in cases extending to the dismissal of a commissioned officer.

AB400,127,5 (3) Testimony may also be read in evidence before a court of inquiry.

AB400,127,12 322.0505 Article 50a—Defense of mental disease or defect. (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.

AB400,127,14 (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.

AB400,127,18 (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:

AB400,127,19 (a) Guilty.

AB400,127,20 (b) Not guilty.

AB400,127,21 (c) Not guilty by reason of mental disease or defect.

AB400,128,2 (4) Sub. (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 of any of the following:

AB400,128,3 (a) Guilty.

AB400,128,4 (b) Not guilty.

AB400,128,5 (c) Not guilty by reason of mental disease or defect.

AB400,128,7 (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:

AB400,128,10 (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.

AB400,128,13 (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.

AB400,128,18 322.051 Article 51—Voting and rulings. (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.

AB400,129,2 (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.

AB400,129,5 (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:

AB400,129,7 (a) The accused shall be presumed to be innocent until his or her guilt is established by legal and competent evidence beyond reasonable doubt.

AB400,129,10 (b) 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.

AB400,129,12 (c) 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.

AB400,129,14 (d) The burden of proof to establish the guilt of the accused beyond reasonable doubt is upon the state.

AB400,129,21 (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.

AB400,129,24 322.052 Article 52—Number of votes required. (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.

AB400,130,8 (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.

AB400,130,10 322.053 Article 53—Court to announce action. A court-martial shall announce its findings and sentence to the parties as soon as determined.

AB400,130,19 322.054 Article 54—Record of trial. (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.

AB400,130,23 (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.

AB400,131,3 (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.

AB400,131,5 (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.

AB400,131,7 SUBCHAPTER VIII SENTENCES

AB400,131,12 322.055 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.

AB400,131,14 322.056 Article 56—Maximum limits. (1) The punishment which a court-martial may direct for an offense may not exceed 10 years confinement.

AB400,131,17 (2) A conviction by a general court-martial of any military offense for which an accused may receive a sentence of confinement for more than 1 year is a felony offense.

AB400,131,19 (3) Except for convictions by a summary court-martial, all other offenses are misdemeanors.

AB400,131,20 (4) A conviction by a summary court-martial is not a criminal conviction.

AB400,131,23 (5) The limits of punishment for violations of the punitive sections under Subch. X shall be 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.

AB400,132,4 322.057 Article 57—Effective date of sentences. (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.

AB400,132,8 (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.

AB400,132,10 (3) All other sentences of courts-martial are effective on the date ordered executed.

AB400,132,20 322.0575 Article 57a—Deferment of sentences. (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.

AB400,132,25 (2) (a) In any case in which a court-martial sentences an accused referred to in par. (b) to confinement, the convening authority may defer the service of the sentence to confinement, without the consent of the accused, until after the accused has been permanently released to the state military forces by a state, the United States, or a foreign country referred to in that paragraph.

AB400,133,2 (b) Paragraph (a) applies to a person subject to this code who meets all of the following:

AB400,133,5 1. While in the custody of a state, the United States, or a foreign country is temporarily returned by that state, the United States, or a foreign country to the state military forces for trial by court-martial.

AB400,133,8 2. After the court-martial, is returned to that state, the United States, or a foreign country under the authority of a mutual agreement or treaty, as the case may be.

AB400,133,12 (3) In any case in which a court-martial sentences an accused to confinement and the sentence to confinement has been ordered executed, but in which review of the case under s. 322.0675 is pending, the adjutant general may defer further service of the sentence to confinement while that review is pending.

AB400,133,13 (4) A sentence of confinement shall address work release privileges.

AB400,133,19 322.058 Article 58—Conditions of confinement. (1) A sentence of confinement adjudged by a court-martial, whether or not the sentence includes discharge or dismissal, and whether or not the discharge or dismissal has been executed, may be carried into execution by confinement in any place authorized by this code. Persons so confined are subject to the same discipline and treatment as persons regularly confined or committed to that place of confinement.

AB400,133,22 (2) The omission of hard labor as a sentence authorized under this code does not deprive the state confinement facility from employing it, if it otherwise is within the authority of that facility to do so.

AB400,133,24 (3) No place of confinement may require payment of any fee or charge for receiving or confining a person except as otherwise provided by law.

AB400,134,5 322.0585 Article 58a—Sentences: reduction in enlisted grade upon approval. (1) A court-martial sentence of an enlisted member in a pay grade above E-1, as approved by the convening authority, that includes a dishonorable or bad-conduct discharge, or confinement, reduces that member to pay grade E-1, effective on the date of that approval.

AB400,134,9 (2) If the sentence of a member who is reduced in pay grade under sub. (1) is set aside or disapproved, or, as finally approved, does not include any punishment named in sub. (1), the rights and privileges of which the person was deprived because of that reduction shall be restored, including pay and allowances.

AB400,134,18 322.0587 Article 58b—Sentences: forfeiture of pay and allowances during confinement. (1) A court-martial sentence described in sub. (2) shall result in the forfeiture of pay, or of pay and allowances, due that member during any period of confinement or parole. The forfeiture subject to this section shall take effect on the date determined under s. 322.057 (1) and may be deferred as provided by that subsection. The pay and allowances forfeited, in the case of a general court-martial, shall be all pay and allowances due that member during the period and, in the case of a special court-martial, shall be two-thirds of all pay due that member during the period.