Gonzalez & Waddington – Attorneys at Law

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Time of reconsideration.

  1. May be reconsidered any time before the sentence is announced.
  2. After announcement, sentence may not be increased upon reconsideration unless sentence was less than mandatory minimum.
  3. United States v. Jennings , 44 M.J. 658 (C.G. Ct. Crim. App. 1996). Error in sentence may be corrected if announced sentence not one actually determined by court- martial. But confusion of military judge’s intended sentence and application of Allen credit arose from comments by judge after court closed. If ambiguity exists on record as to sentence, must be resolved in favor of accused.
  • Procedure for reconsideration.
    1. Any member may propose reconsideration.
    2. Proposal to reconsider is voted on in closed session by secret written ballot.
  • Number of votes required.
    1. With a view to increasing sentence – may reconsider only if at least a majority votes for reconsideration.
    2. With a view to decreasing sentence – may reconsider if the following vote:
      1. For death sentence, only one vote to reconsider required.
      2. For sentence of life or more than ten years, more than one-fourth vote for reconsideration.
      3. For all other sentences, more than one-third vote for reconsideration.
  • Objections Required. United States v. Moreno , 41 M.J. 537 (N-M. Ct. Crim. App. 1994). Rule for Courts-Martial 1109 does not permit members to consider increasing a sentence when a request for reconsideration has been made with a view to decreasing the sentence and accepted by the affirmative vote of less than a majority of the members. The judge erred when he indicated that the members could “start all over again” and consider the full spectrum of authorized punishments once any request for reconsideration had been accepted, without regard to whether it was with a view to increasing or decreasing the sentence.

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