AB400,137,44
(a) Dismiss any charge or specification by setting aside a finding of guilty.
AB400,137,75
(b) Change a finding of guilty to a charge or specification to a finding of guilty
6to an offense that is a lesser included offense of the offense stated in the charge or
7specification.
AB400,137,18
8(9) Before acting under this section on any general or special court-martial
9case in which there is a finding of guilt, the convening authority or other person
10taking action under this section shall obtain and consider the written
11recommendation of a judge advocate. The convening authority or other person
12taking action under this section shall refer the record of trial to the judge advocate,
13and the judge advocate shall use the record in the preparation of the
14recommendation. The recommendation of the judge advocate shall include matters
15as may be prescribed by regulation and shall be served on the accused, who may
16submit any matter in response. Failure to object in the response to the
17recommendation or to any matter attached to the recommendation waives the right
18to object.
AB400,137,20
19(10) The convening authority or other person taking action under this section,
20in the person's sole discretion, may order a proceeding in revision or a rehearing.
AB400,137,25
21(11) A proceeding in revision may be ordered if there is an apparent error or
22omission in the record or if the record shows improper or inconsistent action by a
23court-martial with respect to the findings or sentence that can be rectified without
24material prejudice to the substantial rights of the accused. In no case, however, may
25a proceeding in revision perform any of the following:
AB400,138,2
1(a) Reconsider a finding of not guilty of any specification or a ruling which
2amounts to a finding of not guilty.
AB400,138,53
(b) Reconsider a finding of not guilty of any charge, unless there has been a
4finding of guilty under a specification laid under that charge, which sufficiently
5alleges a violation of some section of this code.
AB400,138,76
(c) Increase the severity of the sentence unless the sentence prescribed for the
7offense is mandatory.
AB400,138,15
8(12) A rehearing may be ordered by the convening authority or other person
9taking action under this section if that person disapproves the findings and sentence
10and states the reasons for disapproval of the findings. If a person disapproves the
11findings and sentence and does not order a rehearing, that person shall dismiss the
12charges. A rehearing as to the findings may not be ordered where there is a lack of
13sufficient evidence in the record to support the findings. A rehearing as to the
14sentence may be ordered if the convening authority or other person taking action
15under this subsection disapproves the sentence.
AB400,138,20
16322.061 Article 61—Withdrawal of appeal. (1) In each case subject to
17appellate review under this code, the accused may file with the convening authority
18a statement expressly withdrawing the right of the accused to appeal. A withdrawal
19shall be signed by both the accused and his or her defense counsel and must be filed
20in accordance with appellate procedures under ch. 809.
AB400,138,22
21(2) The accused may withdraw an appeal at any time in accordance with
22appellate procedures under ch. 809.
AB400,139,2
23322.062 Article 62—Appeal by the state. (1) In a trial by court-martial
24in which a punitive discharge may be adjudged, the state may appeal any of the
25following, other than a finding of not guilty with respect to the charge or specification
1by the members of the court-martial, or by a judge in a bench trial, so long as it is
2not made in reconsideration:
AB400,139,43
(a) An order or ruling of the military judge which terminates the proceedings
4with respect to a charge or specification.
AB400,139,65
(b) An order or ruling which excludes evidence that is substantial proof of a fact
6material in the proceeding.
AB400,139,77
(c) An order or ruling which directs the disclosure of classified information.
AB400,139,98
(d) An order or ruling which imposes sanctions for nondisclosure of classified
9information.
AB400,139,1110
(e) A refusal of the military judge to issue a protective order sought by the State
11to prevent the disclosure of classified information.
AB400,139,1312
(f) A refusal by the military judge to enforce an order described in par. (e) that
13has previously been issued by appropriate authority.
AB400,139,19
14(2) An appeal of an order or ruling may not be taken unless the trial counsel
15provides the military judge with written notice of appeal from the order or ruling
16within 72 hours of the order or ruling. Notice shall include a certification by the trial
17counsel that the appeal is not taken for the purpose of delay and, if the order or ruling
18appealed is one which excludes evidence, that the evidence excluded is substantial
19proof of a fact material in the proceeding.
AB400,139,21
20(3) An appeal under this section shall be diligently prosecuted as provided by
21law.
AB400,139,24
22(4) An appeal under this section shall be forwarded to the court prescribed in
23s. 322.0675. In ruling on an appeal under this section, that court may act only with
24respect to matters of law.
AB400,140,4
1(5) Any period of delay resulting from an appeal under this section shall be
2excluded in deciding any issue regarding denial of a speedy trial unless an
3appropriate authority determines that the appeal was filed solely for the purpose of
4delay with the knowledge that it was totally frivolous and without merit.
AB400,140,17
5322.063 Article 63—Rehearings. Each rehearing under this code shall take
6place before a court-martial composed of members not members of the court-martial
7which first heard the case. Upon a rehearing the accused may not be tried for any
8offense of which he or she was found not guilty by the first court-martial, and no
9sentence in excess of or more severe than the original sentence may be approved,
10unless the sentence is based upon a finding of guilty of an offense not considered upon
11the merits in the original proceedings, or unless the sentence prescribed for the
12offense is mandatory. If the sentence approved after the first court-martial was in
13accordance with a pretrial agreement and the accused at the rehearing changes a
14plea with respect to the charges or specifications upon which the pretrial agreement
15was based, or otherwise does not comply with the pretrial agreement, the approved
16sentence as to those charges or specifications may include any punishment not in
17excess of that lawfully adjudged at the first court-martial.
AB400,140,25
18322.064 Article 64—Review by the senior force judge advocate. (1) 19Each general and special court-martial case in which there has been a finding of
20guilty shall be reviewed by the senior force judge advocate, or a designee. The senior
21force judge advocate, or designee, may not review a case under this subsection if that
22person has acted in the same case as an accuser, investigating officer, member of the
23court, military judge, or counsel or has otherwise acted on behalf of the prosecution
24or defense. The senior force judge advocate's review shall be in writing and shall
25contain all of the following:
AB400,141,1
1(a) Conclusions regarding all of the following:
AB400,141,22
1. The court had jurisdiction over the accused and the offense.
AB400,141,33
2. The charge and specification stated an offense.
AB400,141,44
3. The sentence was within the limits prescribed as a matter of law.
AB400,141,55
(b) A response to each allegation of error made in writing by the accused.
AB400,141,86
(c) If the case is sent for action under sub. (2), a recommendation as to the
7appropriate action to be taken and an opinion as to whether corrective action is
8required as a matter of law.
AB400,141,11
9(2) The record of trial and related documents in each case reviewed under sub.
10(1) shall be sent for action to the adjutant general, under any of the following
11circumstances:
AB400,141,1212
(a) The judge advocate who reviewed the case recommends corrective action.
AB400,141,1413
(b) The sentence approved under s. 322.060 extends to dismissal, a
14bad-conduct or dishonorable discharge, or confinement for more than 6 months.
AB400,141,1515
(c) Action is otherwise required by regulations of the adjutant general.
AB400,141,16
16(3) The adjutant general may do any of the following:
AB400,141,1717
(a) Disapprove or approve the findings or sentence, in whole or in part.
AB400,141,1818
(b) Remit, commute, or suspend the sentence in whole or in part.
AB400,141,2019
(c) Except where the evidence was insufficient at the trial to support the
20findings, order a rehearing on the findings, on the sentence, or on both.
AB400,141,2121
(d) Dismiss the charges.
AB400,141,23
22(4) If a rehearing is ordered but the convening authority finds a rehearing
23impracticable, the convening authority shall dismiss the charges.
AB400,142,4
24(5) If the opinion of the senior force judge advocate, or designee, in the senior
25force judge advocate's review under sub. (1) is that corrective action is required as
1a matter of law and if the adjutant general does not take action that is at least as
2favorable to the accused as that recommended by the judge advocate, the record of
3trial and action thereon shall be sent to the governor for review and action as deemed
4appropriate.
AB400,142,11
5(6) The senior force judge advocate, or a designee, may review any case in
6which there has been a finding of not guilty of all charges and specifications. The
7senior force judge advocate, or designee, may not review a case under this subsection
8if that person has acted in the same case as an accuser, investigating officer, member
9of the court, military judge, or counsel or has otherwise acted on behalf of the
10prosecution or defense. The senior force judge advocate's review shall be limited to
11questions of subject matter jurisdiction.
AB400,142,13
12(7) The record of trial and related documents in each case reviewed under sub.
13(4) shall be sent for action to the adjutant general.
AB400,142,14
14(8) The adjutant general may do any of the following:
AB400,142,1715
(a) When subject matter jurisdiction is found to be lacking, void the
16court-martial from inception, with or without prejudice to the government, as the
17adjutant general deems appropriate.
AB400,142,1918
(b) Return the record of trial and related documents to the senior force judge
19advocate for appeal by the government as provided by law.
AB400,142,23
20322.065 Article 65—Disposition of records after review by the
21convening authority. Except as otherwise required by this code, all records of trial
22and related documents shall be transmitted and disposed of as prescribed by
23regulation and provided by law.
AB400,143,3
24322.0675 Article 67a—Review by state appellate authority. Decisions of
25a court-martial are from a court with jurisdiction to issue felony convictions and
1appeals are to the Wisconsin court of appeals, District IV and, if necessary, to the
2Wisconsin Supreme Court. The appellate procedures to be followed shall be those
3provided under ch. 809.
AB400,143,10
4322.070 Article 70—Appellate counsel. (1) The senior force judge
5advocate shall detail a judge advocate as appellate Government counsel to represent
6the state in the review or appeal of cases specified in s. 322.0675 and before any
7federal court when requested to do so by the state attorney general. Appellate
8government counsel shall be an attorney licensed to practice in this state or a
9member in good standing of the bar of the highest court of the state to which the
10appeal is taken.
AB400,143,13
11(2) Upon an appeal by the state, an accused has the right to be represented by
12detailed military counsel before any reviewing authority and before any appellate
13court.
AB400,143,15
14(3) Upon the appeal by an accused, the accused has the right to be represented
15by military counsel before any reviewing authority.
AB400,143,18
16(4) Upon the request of an accused entitled to be so represented, the state
17senior force judge advocate shall appoint a judge advocate to represent the accused
18in the review or appeal of cases specified in subs. (2) and (3).
AB400,143,20
19(5) An accused may be represented by civilian appellate counsel at no expense
20to the State.
AB400,144,4
21322.071 Article 71—Execution of sentence; suspension of sentence. (1) 22If the sentence of the court-martial extends to dismissal or a dishonorable or
23bad-conduct discharge and if the right of the accused to appellate review is not
24waived, and an appeal is not withdrawn under s. 322.061, that part of the sentence
25extending to dismissal or a dishonorable or bad-conduct discharge may not be
1executed until there is a final judgment as to the legality of the proceedings. A
2judgment as to the legality of the proceedings is final in cases when review is
3completed by an appellate court prescribed in s. 322.0675, and is deemed final by the
4law of state where the judgment was had.
AB400,144,12
5(2) If the sentence of the court-martial extends to dismissal or a dishonorable
6or bad conduct discharge and if the right of the accused to appellate review is waived,
7or an appeal is withdrawn under s. 322.061, that part of the sentence extending to
8dismissal or a dishonorable or bad-conduct discharge may not be executed until
9review of the case by the senior force judge advocate and any action on that review
10under s. 322.064 is completed. Any other part of a court-martial sentence may be
11ordered executed by the convening authority or other person acting on the case under
12s. 322.060 when so approved under that section.
AB400,144,18
13322.072 Article 72—Vacation of suspension. (1) Before the vacation of
14the suspension of a special court-martial sentence, which as approved includes a
15bad-conduct discharge, or of any general court-martial sentence, the officer having
16special court-martial jurisdiction over the probationer shall hold a hearing on an
17alleged violation of probation. The probationer shall be represented at the hearing
18by military counsel if the probationer so desires.
AB400,144,23
19(2) The record of the hearing and the recommendation of the officer having
20special court-martial jurisdiction shall be sent for action to the officer exercising
21general court-martial jurisdiction over the probationer. If the officer vacates the
22suspension, any unexecuted part of the sentence, except a dismissal, shall be
23executed, subject to applicable restrictions in this code.
AB400,145,3
1(3) The suspension of any other sentence may be vacated by any authority
2competent to convene, for the command in which the accused is serving or assigned,
3a court of the kind that imposed the sentence.
AB400,145,7
4322.073 Article 73—Petition for a new trial. At any time within 2 years
5after approval by the convening authority of a court-martial sentence the accused
6may petition the adjutant general for a new trial on the grounds of newly discovered
7evidence or fraud on the court-martial.
AB400,145,12
8322.074 Article 74—Remission and suspension. (1) Any authority
9competent to convene, for the command in which the accused is serving or assigned,
10a court of the kind that imposed the sentence may remit or suspend any part or
11amount of the unexecuted part of any sentence, including all uncollected forfeitures
12other than a sentence approved by the governor.
AB400,145,15
13(2) The governor may, for good cause, substitute an administrative form of
14discharge for a discharge or dismissal executed in accordance with the sentence of
15a court-martial.
AB400,145,21
16322.075 Article 75—Restoration.
(1) Under regulations as may be
17prescribed, all rights, privileges, and property affected by an executed part of a
18court-martial sentence which has been set aside or disapproved, except an executed
19dismissal or discharge, shall be restored unless a new trial or rehearing is ordered
20and the executed part is included in a sentence imposed upon the new trial or
21rehearing.
AB400,145,25
22(2) If a previously executed sentence of dishonorable or bad-conduct discharge
23is not imposed on a new trial, the governor may substitute therefore a form of
24discharge authorized for administrative issuance unless the accused is to serve out
25the remainder of the accused's enlistment.
AB400,146,10
1(3) If a previously executed sentence of dismissal is not imposed on a new trial,
2the governor may substitute a form of discharge authorized for administrative issue,
3and the commissioned officer dismissed by that sentence may be reappointed by the
4governor alone to a commissioned grade and rank as in the opinion of the governor
5that former officer would have attained had he or she not been dismissed. The
6reappointment of a former officer shall be without regard to the existence of a
7vacancy and shall affect the promotion status of other officers only insofar as the
8governor may direct. All time between the dismissal and the reappointment shall
9be considered as actual service for all purposes, including the right to pay and
10allowances.
AB400,146,20
11322.076 Article 76—Finality of proceedings, findings, and sentences. 12The appellate review of records of trial provided by this code, the proceedings,
13findings, and sentences of courts-martial as approved, reviewed, or affirmed as
14required by this code, and all dismissals and discharges carried into execution under
15sentences by courts-martial following approval, review, or affirmation as required
16by this code, are final and conclusive. Orders publishing the proceedings of
17courts-martial and all action taken subject to those proceedings are binding upon all
18departments, courts, agencies, and officers of the United States and the several
19states, subject only to action upon a petition for a new trial as provided in s. 322.073
20and to action under s. 322.074.
AB400,147,4
21322.0763 Article 76a—Leave required to be taken pending review of
22certain court-martial convictions. Under regulations prescribed, an accused
23who has been sentenced by a court-martial may be required to take leave pending
24completion of action under this section if the sentence, as approved under s. 322.060,
25includes an unsuspended dismissal or an unsuspended dishonorable or bad-conduct
1discharge. The accused may be required to begin leave on the date on which the
2sentence is approved under s. 322.060 or at any time after that date, and any leave
3may be continued until the date on which action under this section is completed or
4may be terminated at any earlier time.
AB400,147,6
5322.0767 Article 76b—Competency; commitment for examination and
6treatment. (1) The following applies to persons who are incompetent to stand trial:
AB400,147,14
7(a) If a person subject to a general court-martial is found to lack substantial
8mental capacity to understand the proceedings or assist in his or own defense and
9the military judge determined that the person is likely to become competent within
10the period specified under s. 971.14(5) (a), the court-martial convening authority for
11the person shall commit the person to the custody of the department of health and
12family services under s. 971.14 (5). If the military judge determines that the
13defendant is not likely to become competent in the time period specified under s.
14971.14(5), the military judge shall suspend or terminate the general court-martial.
AB400,147,1715
(b) The department of health and family services shall submit all reports that
16are required under s. 971.14 (5) (b) and that pertain to a person subject to a
17commitment order under par. (a) to the court-martial.
AB400,148,218
(c) Upon receiving a report under s. 971.17 (5) (b), the court-martial shall make
19a determination as to whether the person has become competent. If the
20court-martial determines that the defendant has become competent, the
21court-martial shall terminate the commitment to the department of health and
22family services and resume the general court-martial. If the court-martial
23determines that the person is making sufficient progress toward becoming
24competent, the commitment shall continue. If the court-martial determines that the
25person is not likely to become competent to proceed in the time period specified under
1s. 971.14 (5) (a), the court-martial shall suspend or terminate the commitment order
2under this subsection.
AB400,148,53
(d) If a person who has been restored to competency again becomes
4incompetent, the maximum commitment period under s. 971.14 (5) (a) shall be as
5provided under s. 971.14 (5) (d).
AB400,148,96
(e) If the court-martial determines under par. (a) or (d) that the person is not
7likely to become competent to proceed, the court-martial may order that the person
8be delivered to a facility under s. 51.15 (2), an approved public treatment facility
9under s. 51.45 (2), or an appropriate medical or protective placement facility.
AB400,148,1410
(f) If the person is discharged from the military forces while subject to a
11commitment order under par. (a), the court-martial shall suspend or terminate the
12commitment order and may order that the person be delivered to a facility under s.
1351.15 (2), an approved public treatment facility under s. 51.45 (2), or an appropriate
14medical or protective placement facility.
AB400,148,16
15(2) The following applies to persons who are found not guilty by reason of
16mental disease or defect:
AB400,148,2017
(a) If a court-martial finds a person not guilty by reason of mental disease or
18defect, the court-martial shall commit the person to the custody of the department
19of health and family services for a period not to exceed that described under s. 971.17
20(1).
AB400,148,2321
(b) Using the standard under s. 971.17 (3) (a), the court-martial shall
22determine whether the commitment order under par. (a) shall specify institutional
23care or conditional release.
AB400,149,424
(c) The court-martial has the same authority as a circuit court has under s.
25971.17 (2) to order the department of health and family services to conduct a
1predisposition investigation using the procedure in s. 972.15 or a mental
2examination as provided under s. 971.17 (2) (b), (c), and (e) to assist the
3court-martial in determining whether to place the person in institutional care or to
4conditionally release the person.
AB400,149,95
(d) If the court-martial specifies institutional care, the department of health
6and family services shall place the person in an institution as provided under s.
7971.17 (3) (c). If the court-martial specifies conditional release, the department of
8health and family services, in conjunction with the person's county of residence, shall
9develop a plan for conditional release as provided under s. 971.17 (3) (d).
AB400,149,1410
(e) After the court-martial enters an order under this subsection and transfers
11custody of a person to the department of health and family services, the person shall
12be subject to s. 971.17 and the circuit court for the county in which the person is
13institutionalized or where the person is placed on conditional release shall have
14jurisdiction in proceedings under s. 971.17.
AB400,149,1615
SUBCHAPTER X
16
PUNITIVE ARTICLES
AB400,149,20
17322.077 Article 77—Principals. Any person who either commits an offense
18punishable by this code, or aids, abets, counsels, commands, or procures its
19commission, or causes an act to be done which if directly performed by him or her
20would be punishable is a principal.
AB400,149,24
21322.078 Article 78—Accessory after the fact. Any person who, knowing
22that an offense punishable by this code has been committed, receives, comforts, or
23assists the offender in order to hinder or prevent his or her apprehension, trial, or
24punishment shall be punished as a court-martial may direct.
AB400,150,3
1322.079 Article 79—Conviction of lesser included offense. An accused
2may be found guilty of an offense necessarily included in the offense charged or of an
3attempt to commit either the offense charged or an offense necessarily included.
AB400,150,7
4322.080 Article 80—Attempts. (1) An act, done with specific intent to
5commit an offense under this code, amounting to more than mere preparation and
6tending, even though failing, to effect its commission, is an attempt to commit that
7offense.
AB400,150,10
8(2) Any person who attempts to commit any offense punishable by this code
9shall be punished as a court-martial may direct, unless otherwise specifically
10prescribed.
AB400,150,12
11(3) Any person may be convicted of an attempt to commit an offense although
12it appears on the trial that the offense was consummated.
AB400,150,16
13322.081 Article 81—Conspiracy. Any person who conspires with any other
14person to commit an offense under this code shall, if one or more of the conspirators
15does an act to effect the object of the conspiracy, be punished as a court-martial may
16direct.
AB400,150,22
17322.082 Article 82—Solicitation.
(1) Any person who solicits or advises
18another or others to desert in violation of s. 322.085 or mutiny in violation of s.
19322.094 shall, if the offense solicited or advised is attempted or committed, be
20punished with the punishment provided for the commission of the offense, but, if the
21offense solicited or advised is not committed or attempted, the person shall be
22punished as a court-martial may direct.
AB400,151,3
23(2) Any person who solicits or advises another or others to commit an act of
24misbehavior before the enemy in violation of s. 322.099 or sedition in violation of s.
25322.094 shall, if the offense solicited or advised is committed, be punished with the
1punishment provided for the commission of the offense, but, if the offense solicited
2or advised is not committed, the person shall be punished as a court-martial may
3direct.