Is an Article 62 appeal timely filed where government sought reconsideration from the military judge beyond the 72-hour window for a prosecution appeal?
CAAF seems poised to decide whether an Article 62 appeal is timely filed where the prosecution lets the 72-hour window for a government appeal lapse, then seeks reconsideration from the military judge, and then notices a prosecution appeal.
In United States v. Daly, the Coast Guard Court provides the following procedural synopsis:
On 5 March 2010, the military judge dismissed the single charge under Article 134, UCMJ, and its four specifications. The Government requested reconsideration on17 March 2010, which the military judge summarily denied on 26 March 2010. The Government gave notice of appeal on 29 March 2010. On 17 May 2010, the Government filed with this Court the record of trial, which had been authenticated on 2 May 2010. The Government filed its brief on 7 June 2010.
United States v. Daly, 69 M.J. 549, 549 (C.G. Ct. Crim. App. 2010).
The Coast Guard Court proceeded to reach the merits of the government’s appeal and, as we discussed here, denied it. But upon certification from the Judge Advocate General of the Coast Guard, CAAF’s reaction was, Not so fast. CAAF questions whether the Coast Guard Court even had jurisdiction to hear the prosecution appeal. On Thursday, CAAF ordered “that [the government] show cause on or before December 3, 2010, why [the government’s] appeal should not be dismissed for lack of jurisdiction as untimely filed in view of the date trial counsel provided written notice of appeal. See Article 62(a) (2), UCMJ. [The defense] may file a reply to [the government’s] response no later than December 17, 2010.” United States v. Daly, __ M.J. __, No. 10-6010/CG (C.A.A.F. Nov. 18, 2010).”
In United States v. Santiago, 56 M.J. 610 (N-M. Ct. Crim. App. 2001), NMCCA held that where the government doesn’t seek reconsideration from a military judge until after more than 72 hours had passed, the military judge’s ruling on that reconsideration ruling doesn’t reset the 72-hour clock for noticing a prosecution appeal. The Judge Advocate General of the Navy didn’t certify Santiago to CAAF. Daly will likely settle the question for all of the services.