Sec. 5330. COURTS OF CRIMINAL APPEALS

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## SEC. 5330 COURTS OF CRIMINAL APPEALS ###

(a)Appellate Military Judges Subsection

(a)of section 866 of title 10, United States Code (article 66 of the Uniform Code of Military Justice), is amended— ####

(1)in the second sentence, by striking “subsection (f)” and inserting “subsection (h)”; ####

(2)in the fourth sentence, by inserting after “highest court of a State” the following: “and must be certified by the Judge Advocate General as qualified, by reason of education, training, experience, and judicial temperament, for duty as an appellate military judge”; and ####

(3)by adding at the end the following new sentence: “In accordance with regulations prescribed by the President, assignments of appellate military judges under this section (article) shall be for appropriate minimum periods, subject to such exceptions as may be authorized in the regulations.”. ###

(b)Revision of Appellate Procedures Such section (article) is further amended— ####

(1)by redesignating subsections (e), (f), (g), and

(h)as subsections (g), (h), (i), and (j), respectively; and ####

(2)by striking subsections (b), (c), and

(d)and inserting the following new subsections: > > ### “(b) Review > > > #### “(1) Appeals by accused > > A Court of Criminal Appeals shall have jurisdiction over a timely appeal from the judgment of a court-martial, entered into the record under section 860c of this title (article 60c), as follows: > > > ##### “(A) > > On appeal by the accused in a case in which the sentence extends to confinement for more than six months and the case is not subject to automatic review under paragraph (3). > > > ##### “(B) > > On appeal by the accused in a case in which the Government previously filed an appeal under section 862 of this title (article 62). > > > ##### “(C) > > On appeal by the accused in a case that the Judge Advocate General has sent to the Court of Criminal Appeals for review of the sentence under section 856(d) of this title (article 56(d)). > > > ##### “(D) > > In a case in which the accused filed an application for review with the Court under section 869(d)(1)(B) of this title (article 69(d)(1)(B)) and the application has been granted by the Court. > > > #### “(2) Review of certain sentences > > A Court of Criminal Appeals shall have jurisdiction over all cases that the Judge Advocate General orders sent to the Court for review under section 856(d) of this title (article 56(d)). > > > #### “(3) Automatic review > > A Court of Criminal Appeals shall have jurisdiction over a court-martial in which the judgment entered into the record under section 860c of this title (article 60c) includes a sentence of death, dismissal of a commissioned officer, cadet, or midshipman, dishonorable discharge or bad-conduct discharge, or confinement for 2 years or more. > > > ### “(c) Timeliness > > An appeal under subsection (b)(1) is timely if it is filed as follows: > > > #### “(1) > > In the case of an appeal by the accused under subsection (b)(1)(A) or (b)(1)(B), if filed before the later of— > > > ##### “(A) > > the end of the 90-day period beginning on the date the accused is provided notice of appellate rights under section 865(c) of this title (article 65(c)); or > > > ##### “(B) > > the date set by the Court of Criminal Appeals by rule or order. > > > #### “(2) > > In the case of an appeal by the accused under subsection (b)(1)(C), if filed before the later of— > > > ##### “(A) > > the end of the 90-day period beginning on the date the accused is notified that the application for review has been granted by letter placed in the United States mails for delivery by first class certified mail to the accused at an address provided by the accused or, if no such address has been provided by the accused, at the latest address listed for the accused in his official service record; or > > > ##### “(B) > > the date set by the Court of Criminal Appeals by rule or order. > > > ### “(d) Duties > > > #### “(1) Cases appealed by accused > > In any case before the Court of Criminal Appeals under subsection (b), the Court may act only with respect to the findings and sentence as entered into the record under section 860c of this title (article 60c). The Court may affirm only such findings of guilty, and the sentence or such part or amount of the sentence, as the Court finds correct in law and fact and determines, on the basis of the entire record, should be approved. In considering the record, the Court may weigh the evidence, judge the credibility of witnesses, and determine controverted questions of fact, recognizing that the trial court saw and heard the witnesses. > > > #### “(2) Error or excessive delay > > In any case before the Court of Criminal Appeals under subsection (b), the Court may provide appropriate relief if the accused demonstrates error or excessive delay in the processing of the court-martial after the judgment was entered into the record under section 860c of this title (article 60c). > > > ### “(e) Consideration of Appeal of Sentence by the United States > > > #### “(1) In general > > In considering a sentence on appeal or review as provided in section 856(d) of this title (article 56(d)), the Court of Criminal Appeals may consider— > > > ##### “(A) > > whether the sentence violates the law; and > > > ##### “(B) > > whether the sentence is plainly unreasonable. > > > #### “(2) Record on appeal or review > > In an appeal or review under this subsection or section 856(d) of this title (article 56(d)), the record on appeal or review shall consist of— > > > ##### “(A) > > any portion of the record in the case that is designated as pertinent by either of the parties; > > > ##### “(B) > > the information submitted during the sentencing proceeding; and > > > ##### “(C) > > any information required by rule or order of the Court of Criminal Appeals. > > > ### “(f) Limits of Authority > > > #### “(1) Set aside of findings > > > ##### “(A) In general > > If the Court of Criminal Appeals sets aside the findings, the Court— > > > ###### “(i) > > may affirm any lesser included offense; and > > > ###### “(ii) > > may, except when prohibited by section 844 of this title (article 44), order a rehearing. > > > ##### “(B) Dismissal when no rehearing ordered > > If the Court of Criminal Appeals sets aside the findings and does not order a rehearing, the Court shall order that the charges be dismissed. > > > ##### “(C) Dismissal when rehearing impracticable > > If the Court of Criminal Appeals orders a rehearing on a charge and the convening authority finds a rehearing impracticable, the convening authority may dismiss the charge. > > > #### “(2) Set aside of sentence > > If the Court of Criminal Appeals sets aside the sentence, the Court may— > > > ##### “(A) > > modify the sentence to a lesser sentence; or > > > ##### “(B) > > order a rehearing. > > > #### “(3) Additional proceedings > > If the Court determines that additional proceedings are warranted, the Court may order a hearing as may be necessary to address a substantial issue, subject to such limitations as the Court may direct and under such regulations as the President may prescribe.” > . ###

(c)Action When Rehearing Impracticable After Rehearing Order Subsection

(g)of such section (article), as redesignated by subsection (b)(1) of this section, is amended— ####

(1)in the first sentence, by striking “convening authority” and inserting “appropriate authority”; and ####

(2)by striking the last sentence. ###

(d)Section Heading The heading of such section (article) is amended to read as follows: > > ## “SEC. 866 Art. 66. Courts of Criminal Appeals” > . ###

(e)Subsection Heading Amendments for Stylistic Consistency Such section (article) is further amended— ####

(1)in subsection (a), by inserting “Courts of Criminal Appeals.—” after “(a)”; ####

(2)in subsection (g), as redesignated by subsection (b)(1) of this section, by inserting “Action in Accordance With Decisions of Courts.—” after “(g)”; ####

(3)in subsection (h), as so redesignated, by inserting “Rules of Procedure.—” after “(h)”; ####

(4)in subsection (i), as so redesignated, by inserting “Prohibition on Evaluation of Other Members of Courts.—” after “(i)”; and ####

(5)in subsection (j), as so redesignated, by inserting “Ineligibility of Members of Courts To Review Records of Cases Involving Certain Prior Member Service.—” after “(j)”.