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Notification to Accused - 14134_260
Legalman 3 & 2 - Navy Lawyer / Jag training guide manuals
Recomendation for Clemency
After the Supreme Court has taken action, other than denial of a petition for a  writ of certiorari,  in any case, JAG will, unless the case is returned to the COMA for further processing, send the case to the President or SECNAV, or instruct the CA to take action according to the  decision. VACATION OF SUSPENDED SENTENCE An  act  of  misconduct,  to  serve  as  the  basis  for vacation of the suspension of a sentence, must occur within the period of suspension. The order vacating the suspension is issued before the expiration of the period of suspension. The running of the period of suspension is  interrupted  by  the  unauthorized  absence  of  the probationer or by commencement of proceedings to vacate  the  suspension. R.C.M. 1109 indicates that vacation of a suspended sentence may be based on a violation of the UCMJ. Furthermore, when all or part of the sentence has been suspended as a result of a pretrial agreement, the suspension may be vacated for violation  of  any  of  the  lawful  requirements  of  the probation, including the duty to obey the local civilian law (as well as military law), to refrain from associating with known drug users or dealers, and to consent to searches of his or her person, quarters, and vehicle at any  time. AUTHORITY, PROCEDURE, AND ACTION BY THE OFFICER HAVING SPCM JURISDICTION Procedural  rules  for  hearing  requirements  depend on the type of suspended sentence being vacated. . Sentence of any GCM or an SPCM including an approved   BCD. If  the  suspended  sentence  was adjudged by a GCM, or by an SPCM that included an approved  BCD,  the  following  rules  apply.  After  giving notice   to   the   accused,   the   officer   having   SPCM jurisdiction over the probationer personally holds a hearing to inquire into the alleged violation of probation. The  procedure  for  the  hearing  is  similar  to  that prescribed for a formal pretrial investigation (Article 32, UCMJ), and the accused has the right to detailed and/or civilian counsel at the hearing. The record of the hearing and  the  recommendations  of  the  SPCM  authority  are sent  to  the  OEGCMJ  who  may  vacate  the  suspension. . Sentence of an SPCM not including a BCD or sentence of an SCM. If the suspended sentence was adjudged by an SPCM and does not include a BCD, or if the sentence was adjudged by an SCM, the following rules apply. The officer having SPCM jurisdiction over the probationer personally holds a hearing to inquire into the alleged violation of probation. The procedure for the hearing is similar to that prescribed for a formal pretrial   investigation. The  probationer  must  be accorded the same right to counsel at the hearing that he or she was entitled to at the court-martial that imposed the  sentence,  except  there  is  no  right  to  request individual  military  counsel.  Counsel  does  not  need  to be the same counsel who originally represented the probationer. If the officer having SPCM jurisdiction over the probationer decides to vacate all or a portion of the  suspended  sentence,  he  or  she  records  the  evidence that he or she relied on and the reasons for vacating the suspension in his or her action. The officer who actually vacates the suspension executes a written statement including a summary of the evidence he or she is relying on and his or her reasons for  vacating  the  suspension. If, based on an act of misconduct in violation of the terms of suspension, the accuscd is confined before the actual vacation of the suspended sentence, a preliminary hearing must be held before a neutral and detached officer to determine whether there is probable cause to believe the accused has violated the terms of his or her suspension.  JAGMAN  0150  indicates  that  this  officer should  be  one  who  is  appointed  to  review  pretrial confinement under R.C.M. 305. RECORD OF PROCEEDINGS TO VACATE SUSPENDED SENTENCE The  officer  who  conducts  the  vacation  proceeding makes a summarized record of the proceeding, using DD  Form  455,  Report  of  Proceedings  to  Vacate Suspension of General Court-Martial Sentence or of a Special  Court-Martial  Sentence  Including  a Bad-Conduct Discharge, and sends the record and his or her  written  recommendation  about  vacation  to  the OEGCMJ  over  the  probationer. ACTION BY THE OFFICER EXERCISING GCM JURISDICTION Based  on  the  record  produced  by  and  the recommendation   of   the   officer   exercising   special court-martial  jurisdiction  over  the  probationer,  the OEGCMJ over the probationer decides whether the probationer  violated  a  condition  of  suspension  and,  if so, whether to vacate the suspended sentence. If the OEGCMJ decides to vacate, he or she prepares a written statement of evidence relied on and the reasons for vacating. 8-33

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