Chapter 322

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 The deferment may be rescinded at any time by the person who granted it or, if the accused is no longer under that person’s jurisdiction, by the person exercising general court-martial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.

322.0575(2) (2) 

322.0575(2)(a) (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.

322.0575(2)(b) (b) Paragraph (a) applies to a person subject to this code who meets all of the following:

322.0575(2)(b)1. 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.

322.0575(2)(b)2. 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.

322.0575(3) (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.

322.0575(4) (4) A sentence of confinement shall address work release privileges.

322.0575 History History: 2007 a. 200; 2009 a. 179.

322.058 322.058 Article 58 — Conditions of confinement.

322.058(1) (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.

322.058(2) (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.

322.058(3) (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.

322.058 History History: 2007 a. 200.

322.0585 322.0585 Article 58a — Sentences: reduction in enlisted grade upon approval.

322.0585(1) (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.

322.0585(2) (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.

322.0585 History History: 2007 a. 200.

322.0587 322.0587 Article 58b — Sentences: forfeiture of pay and allowances during confinement.

322.0587(1) (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.

322.0587(2) (2) A sentence covered by this section is any sentence that includes any of the following:

322.0587(2)(a) (a) Confinement for more than 6 months.

322.0587(2)(b) (b) Confinement for 6 months or less and a dishonorable or bad-conduct discharge or dismissal.

322.0587(3) (3) In a case involving an accused who has dependents, the convening authority or other person acting under s. 322.060 may waive any or all of the forfeitures of pay and allowances required by sub. (1) for a period not to exceed 6 months. Any amount of pay or allowances that, except for a waiver under this subsection, would be forfeited shall be paid, as the convening authority or other person taking action directs, to the dependents of the accused.

322.0587(4) (4) If the sentence of a member who forfeits pay and allowances under sub. (1) is set aside or disapproved or, as finally approved, does not provide for a punishment referred to in sub. (2), the member shall be paid the pay and allowances that the member would have been paid, except for the forfeiture, for the period during which the forfeiture was in effect.

322.0587 History History: 2007 a. 200; 2009 a. 180.

subch. IX of ch. 322 SUBCHAPTER IX

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.