Finality of Courts-Martial. RCM 1209
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When is a conviction final?
- a) The accused does not file a timely petition for review by CAAF and the case is not otherwise under review by that court; or b) A petition for review is denied or otherwise rejected by CAAF; or c) Review is completed in accordance with the judgment of CAAF and: (1) A petition for a writ of certiorari is not filed within applicable time limits; (2) A petition for a writ of certiorari is denied or otherwise rejected by the Supreme Court; or, (3) Review is otherwise completed in accordance with the judgment of the Supreme Court. 2. In cases not reviewed by a Court of Criminal Appeals. a) When the findings and sentence have been found legally sufficient by a JA, and when action by such officer is required, have been approved by the GCMCA, or b) The findings and sentence have been affirmed by TJAG when review by TJAG is required under RCM 1112(g)(1) or 1201(b)(1).
- United States v. Jackson, 38 M.J. 744 (A.C.M.R. 1993). Abatement after death of appellant,before appeal to Court of Military Appeals. See also United States v. Huey, 57 M.J. 504 (N-M. Ct. Crim. App. 2002) (findings and sentence set aside based on accused’s death prior to final action – motions to vacate and attach granted).
But see United States v. Rorie, 58 M.J. 399 (C.A.A.F. 2003) (the CAAF will no longer grant abatement ab initio upon death of an appellant pending Article 67(a)(3) appellate review, reversing a policy followed by the court since 1953).
Finality and execution of sentences.
- DD or BCD may be ordered executed only after a final judgment within the meaning of RCM 1209.
- Dismissal may be approved and ordered executed only by the Secretary concerned.
- Only President may order execution of death penalty.