Waiver or Withdrawal of Appellate Review. Article 61, UCMJ; RCM 1110

Waiver or Withdrawal of Appellate Review

Waiver or Withdrawal of Appellate Review

militarylawyersucmj26CC0722015RCM 1110(a). After any GCM, except one in which the approved sentence includes death, and after a special court-martial in which the approved sentence includes a BCD the accused may elect to waive appellate review.

Waiver. The accused may sign a waiver of appellate review any time after the sentence isannounced. The waiver may be filed only within 10 days after the accused or defense counsel is served with a copy of the action under RCM 1107(h). On written application of the accused, the CA may extend this period for good cause, for not more than 30 days.                   See RCM 1110(f)(1).

The accused has the right to consult with counsel before submitting a waiver or withdrawal.RCM 1110(b).

  1. Waiver.
    1. Counsel who represented the accused at the court-martial.
    2. Associate counsel.
    3. Substitute counsel.
  2. Withdrawal.
    1. Appellate defense counsel.
    2. Associate defense counsel.
    3. Detailed counsel if no appellate defense counsel has been assigned.
    4. Civilian counsel.

Procedure.

  1. RCM 1110(d). Must be in writing, attached to ROT, and filed with the CA. Writtenstatement must include: statement that accused and counsel have discussed accused’s appellate rights and the effect of waiver or withdrawal on those rights; that accused understands these matters; that the waiver or withdrawal is submitted voluntarily; and signature of accused and counsel. See Appendix 19 and 20, MCM.
  2. TDS SOP requires a seventy-two hour “cooling off” period; re-contact after initialrequest to waive/withdraw.
  3. The accused may only file a waiver within ten days after he or DC is served with acopy of the action (or within period of extension not to exceed thirty days).
  4. United States v. Smith , 44 M.J. 387 (C.A.A.F. 1996). May not validly waiveappellate review, under Article 61, UCMJ, before CA takes initial action in a case, citing , inter alia , United States v. Hernandez , 33 M.J. 145 (C.M.A. 1991) (Article 61(a) permits such waiver “within 10 days after the action . . . is served on the accused or on defense counsel.” RCM 1110(f) must be read in this context. Clearly the RCM cannot supersede a statute, but careful reading of the RCM reveals that it may be signed “at any time after the sentence is announced” but “must be filed within 10 days after” service of the action (emphasis added)). Smith , 44 M.J. at 391-392.
  5. RCM 1110(f)(2). The accused may file a withdrawal at any time before appellatereview is completed.
  6. RCM 1110(g). Once filed in substantial compliance with the rules, the waiver orwithdrawal may not be revoked.
    1. United States v. Walker , 34 M.J. 317 (C.M.A. 1992). Documents purporting to withdraw accused’s appeal request were invalid attempt to waive appellate review prior to CA’s action.
    2. United States v. Smith , 34 M.J. 247 (C.M.A. 1992). Waiver of appellate representation 58 days before action by CA was tantamount to waiver of appellate review; therefore, was premature and without effect.
    3. Clay v. Woodmansee , 29 M.J. 663 (A.C.M.R. 1989). Accused’s waiver of appellate review was null and void as it was the result of the government’s promise of clemency.