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Forwarding a Record of Trial to the Judge Advocate  General
Legalman 3 & 2 - Navy Lawyer / Jag training guide manuals
Vacation of Suspended Sentences
. If the sentence affirmed by the NMCMR does not include  a  dismissal,  notify  the  CA,  the  OEGCMJ  over the accused, or SECNAV who may order into execution any unexecuted sentence affirmed by the NMCMR. Notification to Accused The  accused  is  notified  of  the  decision  of  the NMCMR. If the accused has the right to petition the COMA for review, the accused is provided with a copy of the decision of the NMCMR bearing an endorsement notifying the accused of this right. The endorsement informs the accused that such a petition: .    may be filed only within 60 days from the time the  accused  was  notified  of  the  decision  of  the NMCMR or the mailed copy of the decision was postmarked, whichever is earlier; or .   may be sent through the officer immediately exercising  general  court-martial  jurisdiction over  the  accused  and  through  JAG  or  filed directly with the COMA. The accused may be notified personally or a copy of the decision may be sent, after service on appellate counsel, by certified First-Class Mail to the accused. If JAG sends the case to the COMA, the accused should be so notified. REVIEW BY A COURT OF MILITARY APPEALS The COMA reviews the record in all cases: l l l in   which   the   sentence,   as  affirmed  by  an NMCMR, extends to death; reviewed by an NMCMR that JAG orders sent to a COMA for review; and reviewed  by  an  NMCMR,  except  those  referred to it by JAG, in which, upon petition by the accused and on good case shown, the COMA grants a review. In cases reviewed, a COMA has authority to act only on matters of law. A COMA does not have the authority to (1) weigh the evidence; (2) judge the credibility of witnesses; or (3) make new findings of fact. Whether there is sufficient evidence to sustain a finding of guilty, however, is a matter of law. In a case certified by JAG to a COMA, action by the COMA is not restricted to the issues certified by JAG. In a case reviewed upon petition of an accused, the court is required to take action only with regard to the issues specified in the grant of review. ACTION ON DECISION BY A COURT OF MILITARY APPEALS After it acts on a case, the COMA may direct JAG to  return  the  record  to  the  NMCMR  for  further proceedings  according  to  the  decision  of  the  court. Otherwise,  unless  the  decision  is  subject  to  review  by the Supreme Court, or there is to be further action by the President  of  the  United  States  or  SECNAV,  JAG  will instruct the CA to take action according to the decision of  the  COMA. If  the  COMA  affirms  a  sentence  that  must  be approved by the President before it can be executed, JAG  sends  the  record  of  trial,  the  decision  of  the NMCMR,   the   decision   of   the   COMA,   and   the recommentation of JAG to SECNAV for the action of the  President. REVIEW BY THE UNITED STATES SUPREME COURT Finally, review by the United States Supreme Court is possible under 28 U.S.C. $ 1259 and Article 67(h), UCMJ. Decisions of the COMA may be reviewed by the  Supreme  Court  by  a  writ  of  certiorari  in  the following  cases: Q l l l Cases  reviewed  by  the  COMA  under  Article 67(b)(1) Cases  certified  to  the  COMA  by  JAG  under Article  67(b)(2) Cases in which the COMA granted a petition for review under Article 67(b)(3) Cases other than those described previously that the  COMA  has  granted  relief A writ of certiorari is an order by the appellate court that is used by that court when it has discretion on whether or not to hear an appeal from a lower court. If the writ is denied, the court refuses to hear the appeal and, in effect, the previous judgement stands unchanged. If the writ is granted, then it has the effect of ordering the lower court to certify the record and send it to the higher court that has used its discretion to hear the appeal. The Supreme Court may not review by a writ of certiorari  any action of a COMA in refusing to grant a petition  for  review. 8-32

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