In Daly, a military judge dismissed a charge and its supporting specifications.  The government neither sought reconsideration nor filed a notice of appeal within 72 hours.  Instead, it waited 12 days to ask the military judge to reconsider.  When that motion was denied, the government then filed a notice of appeal within 72 hours.  Too late, CAAF ruled today in a short per curiam opinion.  United States v. Daly, __ M.J. ___, No. 10-6010 (C.A.A.F. March 28, 2011) (per curiam).

CAAF explained:

The Government failed to file either a motion for reconsideration of the order to dismiss or a notice of appeal within the seventy-two-hour period of government appeals authorized in Article 62(a)(2).  Instead, the Government took twelve days to finalize and submit a brief to the military judge asking for reconsideration of the order to dismiss.  The Government’s action was untimely under the explicit limitation of Article 62.

Id., slip op. at 4.

One Response to “CAAF holds Article 62 appeal untimely in Daly”

  1. John O'Connor says:

    CAAF has this one right. A question left open is whether the Government can move for reeconsideration within three days and if reconsideration is ultimately denied, then take an appeal within three days of the denial of reconsideration. You could read this decision as providing dicta to the effect that the answer is “yes,” but I don’t see a statutory basis for it. I would be very reluctant to move for reconsideration of anything I intended to appeal if reconsideration was denied.

    (Granted, there could be a case out there that answers this question, but I don’t see a statutory basis for staying the appeal deadline in favor of a motion for reconsideration. By contrast, FRAP 4 explicitly stays several appeal deadline pending resolution of certain types of motions).