Timeliness

Discussion of timeliness of motions generally:

  1. timelinessMotions which must be made prior to the plea (or else they are waived). R.C.M. 905(b).
    1. Defects in the charges and specifications.
    2. Defects in preferral, forwarding, and referral.
    3. Suppression of evidence.
    4. Discovery and witness production.
    5. Severance of charges, specifications, or accused.
    6. Individual Military Counsel (IMC) requests.
  2. Motions which should be made before final adjournment (or else waived).
    1.  Continuance. R.C.M. 906(b)(1).
    2. Speedy trial. R.C.M. 907(b)(2)(A). Note: If speedy trial right alleges an Article 10 violation, a plea of guilty does not waive appellate review of this issue. Additionally, failure to raise an Article 10 motion prior to plea may not result in forfeiture of the issue for purposes of appeal. See United States v. Mizgala, 61 M.J. 122, 127 (2005) (stating that a speedy trial right under Article 10 should not be subject to rules of “waiver and forfeiture associated with guilty pleas”).
    3.  Release from pretrial confinement. R.C.M. 906(b)(8).
    4.  Statute of limitations. R.C.M. 907(b)(2)(B).
    5.  Former jeopardy. R.C.M. 907(b)(2)(C).
    6.  Grant of immunity. R.C.M. 907(b)(2)(D).
  3. Motions which may be made at any time, including appellate review.
    1.  Lack of jurisdiction over accused or offense. R.C.M. 905(e).
    2.  Failure to allege an offense. R.C.M. 905(e).
    3.  Improperly convened court.
    4.  Unlawful command influence.

But see United States v. Weasler, 43 M.J. 15 (1995) Pretrial agreement initiated by accused waived any objection to UCI on appeal. Waiver of UCI in accusatory phase, as distinguished from adjudicative stage, is permissible.

Improperly convened court

 

Unlawful command influence