reglab/statecodes huggingface dataset:
2023 Kansas Statutes › Chapter 48 - Militia, Defense And Public Safety › Article 27 - Code Of Military Justice; Trial Procedure › 48-2703 (KCMJ Art. 38) Duties of trial counsel and defense counsel.

48-2703.
(KCMJ Art. 38) Duties of trial counsel and defense counsel.
(a) The trial counsel of a general or special court-martial shall prosecute in the name of the state and shall, under the direction of the court, prepare the record of the proceedings.
(b) The accused has the right to be represented in the accused's defense before a general or special court-martial by civilian counsel if provided by the accused, by military counsel of the accused's own selection if reasonably available or by the defense counsel detailed under K.S.A. 48-2505 and amendments thereto. Should the accused have counsel of the accused's own selection, the defense counsel and assistant defense counsel, if any, who were detailed shall, if the accused so desires, act as the accused's associate counsel; otherwise they shall be excused by the military judge.
(c) In every court-martial proceeding, the defense counsel may, in the event of conviction, forward for attachment to the record of proceedings a brief of such matters the defense counsel feels should be considered in behalf of the accused on review, including any objection to the contents of the record which the defense counsel considers appropriate.
(d) An assistant trial counsel of a general court-martial may, under the direction of the trial counsel or when such assistant trial counsel is qualified to be a trial counsel as required by K.S.A. 48-2505 and amendments thereto, perform any duty imposed by law, regulation or the custom of the service upon the trial counsel of the court.
(e) An assistant defense counsel of a general court-martial may, under the direction of the defense counsel or when such assistant defense counsel is qualified to be the defense counsel as required by K.S.A. 48-2505 and amendments thereto, perform any duty imposed by law, regulation or the custom of the service upon counsel for the accused.
History:
L. 1972, ch. 203, § 48-2703; L. 1988, ch. 191, § 24; July 1.
2023 Kansas Statutes › Chapter 48 - Militia, Defense And Public Safety › Article 27 - Code Of Military Justice; Trial Procedure › 48-2704 Sessions.

48-2704.
Sessions.
(a) At any time after the service of charges which have been referred for trial to a court-martial composed of a military judge and members, the military judge may, subject to K.S.A. 48-2606 call the court into session without the presence of the members for the purpose of:
(1) Hearing and determining motions raising defenses or objections which are capable of determination without trial of the issues raised by a plea of not guilty;
(2) hearing and ruling upon any matter which may be ruled upon by the military judge under this code, whether or not the matter is appropriate for later consideration or decision by the members of the court;
(3) if permitted by regulations of the governor, holding the arraignment and receiving the pleas of the accused; and
(4) performing any other procedural function which may be performed by the military judge under this chapter or under rules prescribed pursuant to K.S.A. 48-2701 and which does not require the presence of the members of the court. These proceedings shall be conducted in the presence of the accused, the defense counsel, and the trial counsel and shall be made part of the record.
(b) When the members of a court-martial deliberate or vote, only the members may be present. All other proceedings, including any other consultation of the members of the court with counsel or the military judge, shall be made a part of the record and shall be in the presence of the accused, the defense counsel, the trial counsel, and, in cases in which a military judge has been detailed to the court, the military judge.
History:
L. 1972, ch. 203, § 48-2704; July 1.
2023 Kansas Statutes › Chapter 48 - Militia, Defense And Public Safety › Article 27 - Code Of Military Justice; Trial Procedure › 48-2705 (KCMJ Art. 40) Continuances.

48-2705.
(KCMJ Art. 40) Continuances.
A military judge, a court-martial without a military judge or a summary court may, for reasonable cause, grant a continuance to any party for such time, and as often, as may appear to be just.
History:
L. 1972, ch. 203, § 48-2705; L. 1988, ch. 191, § 25; July 1.
2023 Kansas Statutes › Chapter 48 - Militia, Defense And Public Safety › Article 27 - Code Of Military Justice; Trial Procedure › 48-2706 (KCMJ Art. 41) Challenges.

48-2706.
(KCMJ Art. 41) Challenges.
(a) The military judge and members of a general or special court-martial may be challenged by the accused or the trial counsel for cause stated to the court. The military judge shall determine the relevancy and validity of challenges for cause, and may not receive a challenge to more than one person at a time. Challenges by the trial counsel shall ordinarily be presented and decided before those by the accused are offered.
(b) Each accused and the trial counsel is entitled to one peremptory challenge, but the military judge may not be challenged except for cause.
History:
L. 1972, ch. 203, § 48-2706; L. 1988, ch. 191, § 26; July 1.
2023 Kansas Statutes › Chapter 48 - Militia, Defense And Public Safety › Article 27 - Code Of Military Justice; Trial Procedure › 48-2707 (KCMJ Art. 42) Oaths.

48-2707.
(KCMJ Art. 42) Oaths.
(a) Before performing their respective duties, military judges, members of general and special courts-martial, trial counsel, assistant trial counsel, defense counsel, assistant defense counsel, reporters, and interpreters shall take an oath to perform their duties faithfully. The form of the oath, the time and place of the taking thereof, the manner of recording the same, and whether the oath shall be taken for all cases in which these duties are to be performed or for a particular case, shall be as prescribed in regulations of the governor. These regulations may provide that an oath to perform faithfully duties as a military judge, trial counsel, assistant trial counsel, defense counsel, or assistant defense counsel may be taken at any time by any judge advocate or other person certified to be qualified or competent for the duty, and if such an oath is taken it need not again be taken at the time the judge advocate or other person is detailed to that duty.
(b) Each witness before a military court shall be examined on oath or affirmation.
History:
L. 1972, ch. 203, § 48-2707; L. 1988, ch. 191, § 27; July 1.
2023 Kansas Statutes › Chapter 48 - Militia, Defense And Public Safety › Article 27 - Code Of Military Justice; Trial Procedure › 48-2708 (KCMJ Art. 43) Statute of limitations.

48-2708.
(KCMJ Art. 43) Statute of limitations.
(a) A person charged with sedition, mutiny, desertion or absence without leave in time of war or aiding a hostile force may be tried and punished at any time without limitation.
(b) Except as otherwise provided in this section, a person charged with desertion or with the offense punishable under K.S.A. 48-3040 and amendments thereto is not liable to be tried by court-martial if the offense was committed more than three years before the receipt of sworn charges and specifications by an officer exercising summary court-martial jurisdiction over the command.
(c) Except as otherwise provided in this section, a person charged with any offense is not liable to be tried by court-martial or punished under K.S.A. 48-2301 and amendments thereto if the offense was committed more than two years before the receipt of sworn charges and specifications by an officer exercising summary court-martial jurisdiction over the command or before the imposition of punishment under K.S.A. 48-2301 and amendments thereto.
(d) Periods in which the accused was absent from territory in which the state has the authority to apprehend the accused, or in the custody of civil authorities, or in the hands of a hostile force, shall be excluded in computing the period of limitation prescribed in this section.
History:
L. 1972, ch. 203, § 48-2708; L. 1988, ch. 191, § 28; July 1.
2023 Kansas Statutes › Chapter 48 - Militia, Defense And Public Safety › Article 27 - Code Of Military Justice; Trial Procedure › 48-2709 Former jeopardy.

48-2709.
Former jeopardy.
(a) No person may be tried a second time in any court of the state for the same offense.
(b) No proceeding in which an accused has been found guilty by a court-martial upon any charge or specification is a trial in the sense of this section until the finding of guilty has become final after review of the case has been fully completed.
(c) A proceeding which, after the introduction of evidence but before a finding, is dismissed or terminated by the convening authority or on motion of the prosecution for failure of available evidence or witnesses without any fault of the accused is a trial in the sense of this section.
History:
L. 1972, ch. 203, § 48-2709; July 1.
2023 Kansas Statutes › Chapter 48 - Militia, Defense And Public Safety › Article 27 - Code Of Military Justice; Trial Procedure › 48-2710 (KCMJ Art. 45) Pleas of the accused.

48-2710.
(KCMJ Art. 45) Pleas of the accused.
(a) If an accused after arraignment makes an irregular pleading, or after a plea of guilty sets up matter inconsistent with the plea, or if it appears that the accused has entered the plea of guilty improvidently or through lack of understanding of its meaning and effect, or if the accused fails or refuses to plead, a plea of not guilty shall be entered in the record, and the court shall proceed as though the accused had pleaded not guilty.
(b) With respect to any charge or specification to which a plea of guilty has been made by the accused and accepted by the military judge, by a court-martial without a military judge or summary court, a finding of guilty of the charge or specification may, if permitted by the regulations of the governor, be entered immediately without vote. This finding shall constitute the finding of the court unless the plea of guilty is withdrawn prior to the announcement of the sentence, in which event the proceedings shall continue as though the accused had pleaded not guilty.
History:
L. 1972, ch. 203, § 48-2710; L. 1988, ch. 191, § 29; July 1.
2023 Kansas Statutes › Chapter 48 - Militia, Defense And Public Safety › Article 27 - Code Of Military Justice; Trial Procedure › 48-2711 (KCMJ Art. 46) Opportunity to obtain witnesses and other evidence.

48-2711.
(KCMJ Art. 46) Opportunity to obtain witnesses and other evidence.
(a) Trial counsel, defense counsel and the court-martial shall have equal opportunity to obtain witnesses and other evidence in accordance with such regulations as the governor may prescribe. Process issued in courts-martial cases to compel witnesses to appear and testify and to compel the production of other evidence shall be similar to that which courts of the state having criminal jurisdiction may lawfully issue and shall include the authority to summon witnesses from without the state as provided in K.S.A. 22-4201 et seq. and amendments.
(b) The military judge of a court-martial or a summary court officer may:
(1) Issue a warrant for the arrest of any accused person who having been served with a warrant and a copy of the charges, disobeys a written order by the convening authority to appear before the court;
(2) issue subpoenas duces tecum and other subpoenas; and
(3) enforce by attachment the attendance of witnesses and the production of books and papers.
History:
L. 1972, ch. 203, § 48-2711; L. 1988, ch. 191, § 30; July 1.
2023 Kansas Statutes › Chapter 48 - Militia, Defense And Public Safety › Article 27 - Code Of Military Justice; Trial Procedure › 48-2712 (KCMJ Art. 47) Refusal to appear or testify.

48-2712.
(KCMJ Art. 47) Refusal to appear or testify.
(a) Any person not subject to this code who:
(1) Has been duly subpoenaed to appear as a witness or to produce books and records before a military court or before any military or civil officer designated to take a deposition to be read in evidence before such a court;
(2) has been duly paid or tendered the fees and mileage of a witness at the rates allowed to witnesses attending the district courts of the state; and
(3) willfully neglects or refuses to appear, or refuses to qualify as a witness or to testify or to produce any evidence which that person may have been legally subpoenaed to produce; is guilty of an offense against the state constituting a class C misdemeanor.
(b) Upon the certification of the facts under subdivision (a) hereof by the military judge or summary court officer to the county attorney of the county where the offense occurred, the county attorney shall prosecute as if the offense were specifically included in the Kansas criminal code.
(c) The fees and mileage of witnesses shall be advanced or paid in the same amount and to the same extent as witnesses under the Kansas criminal code.
History:
L. 1972, ch. 203, § 48-2712; L. 1988, ch. 191, § 31; July 1.
2023 Kansas Statutes › Chapter 48 - Militia, Defense And Public Safety › Article 27 - Code Of Military Justice; Trial Procedure › 48-2713 Contempts.

48-2713.
Contempts.
(a) A military court may punish for contempt any person subject to this code who uses any menacing word, sign, or gesture in its presence, or who disturbs its proceedings by any riot or disorder.
(b) Any person not subject to this code who engages in conduct described in subdivision (a) hereof is guilty of an offense against the state constituting a class C misdemeanor and the facts may be certified and prosecution instituted as provided in and contemplated by subsection (b) of K.S.A. 48-2712.
History:
L. 1972, ch. 203, § 48-2713; July 1.
2023 Kansas Statutes › Chapter 48 - Militia, Defense And Public Safety › Article 27 - Code Of Military Justice; Trial Procedure › 48-2714 (KCMJ Art. 49) Depositions.

48-2714.
(KCMJ Art. 49) Depositions.
(a) At any time after charges have been signed, as provided in K.S.A. 48-2601 and amendments thereto, any party may take oral or written depositions unless the military judge or an authority competent to convene a court-martial for the trial of those charges forbids it for good cause. If a deposition is to be taken before charges are referred for trial, such an authority shall designate lawyers to represent the prosecution and the defense and may authorize those officers to take the deposition of any witness.
(b) The party at whose instance a deposition is to be taken shall give to every other party reasonable written notice of the time and place for taking the deposition.
(c) Depositions may be taken before and authenticated by any military or civil officer authorized by the laws of the state or by the laws of the place where the deposition is taken to administer oaths.
(d) A duly authenticated deposition taken upon reasonable notice to the other parties, so far as otherwise admissible under the rules of evidence, may be read in evidence or, in the case of audio tapes, video tapes or similar materials, may be played in evidence before any court-martial or in any proceeding before a court of inquiry, if it appears that:
(1) The witness resides or is beyond the state in which the court, commission or board is ordered to sit, or beyond 100 miles from the place of trial or hearing;
(2) the witness by reason of death, age, sickness, bodily infirmity, imprisonment, military necessity, nonamenability to process or other reasonable cause is unable or refuses to appear and testify in person at the place of trial or hearing; or
(3) the present whereabouts of the witness is unknown.
History:
L. 1972, ch. 203, § 48-2714; L. 1988, ch. 191, § 32; July 1.
2023 Kansas Statutes › Chapter 48 - Militia, Defense And Public Safety › Article 27 - Code Of Military Justice; Trial Procedure › 48-2715 Admissibility of records of courts of inquiry.

48-2715.
Admissibility of records of courts of inquiry.
(a) In any case not extending to the dismissal of a commissioned officer, the sworn testimony, contained in the duly authenticated record of proceedings of a court of inquiry, of a person whose oral testimony cannot be obtained, may, if otherwise admissible under the rules of evidence, be read in evidence by any party before a court-martial if the accused was a party before the court of inquiry and if the same issue was involved or if the accused consents to the introduction of such evidence.
(b) Such testimony may be read in evidence only by the defense in cases extending to the dismissal of a commissioned officer.
(c) Such testimony may also be read in evidence before a court of inquiry or a military board.
History:
L. 1972, ch. 203, § 48-2715; July 1.
2023 Kansas Statutes › Chapter 48 - Militia, Defense And Public Safety › Article 27 - Code Of Military Justice; Trial Procedure › 48-2716 (KCMJ Art. 51) Voting and rulings.

48-2716.
(KCMJ Art. 51) Voting and rulings.
(a) Voting by members for a general or special court-martial on the findings and on the sentence, and by members of a court-martial without a military judge on questions of challenge, shall be by secret written ballot. The junior member of the court shall in each case count the votes. The count shall be checked by the president, who shall forthwith announce the result of the ballot to the members of the court.
(b) The military judge, and, except for questions of challenge, the president of a court-martial without a military judge, shall rule upon all questions of law and all interlocutory questions arising during the proceedings. Any such ruling made by the military judge upon any question of law or any interlocutory question other than the factual issue of mental responsibility of the accused, or by the president of a court-martial without a military judge upon any question of law other than a motion for a finding of not guilty, is final and constitutes the ruling of the court. However, the military judge, or the president of a court-martial without a military judge, may change the ruling at any time during the trial. Unless the ruling is final, if any member objects thereto, the court shall be cleared and closed and the question decided by a voice vote as provided in K.S.A. 48-2717 and amendments thereto beginning with the junior in rank.
(c) Before a vote is taken on the findings, the military judge shall in the presence of the accused and counsel, instruct the members of the court as to the elements of the offense and charge them that:
(1) The accused must be presumed to be innocent until guilt is established by legal and competent evidence beyond reasonable doubt;
(2) in the case being considered, if there is a reasonable doubt as to the guilt of the accused, the doubt must be resolved in favor of the accused and the accused must be acquitted;
(3) if there is a reasonable doubt as to the degree of guilt, the finding must be in a lower degree as to which there is no reasonable doubt; and
(4) the burden of proof of establishing the guilt of the accused beyond reasonable doubt is upon the state.
(d) Subsections (a), (b) and (c) do not apply to a court-martial composed of a military judge only. The military judge of such a court-martial shall determine all questions of law and fact arising during the proceedings and, if the accused is convicted, adjudge and impose appropriate sentence. The military judge of such a court-martial shall make a general finding and shall in addition on request find the facts specially. If an opinion or memorandum of decision is filed, it will be sufficient if the findings of fact appear therein.
History:
L. 1972, ch. 203, § 48-2716; L. 1988, ch. 191, § 33; July 1.
2023 Kansas Statutes › Chapter 48 - Militia, Defense And Public Safety › Article 27 - Code Of Military Justice; Trial Procedure › 48-2717 (KCMJ Art. 52) Number of votes required.

48-2717.
(KCMJ Art. 52) Number of votes required.
(a) No person may be convicted of an offense, except as provided in K.S.A. 48-2710 and amendments thereto or by the concurrence of 2/3 of the members present at the time the vote is taken.
(b) All sentences shall be determined by the concurrence of 2/3 of the members present at the time that the vote is taken.
(c) All other questions to be decided by the members of a general or special court-martial shall be determined by a majority vote, but a determination to reconsider a finding of guilty or to reconsider a sentence with a view toward decreasing it may be made by a lesser vote which indicates a different result would be obtained. A tie vote on a challenge disqualifies the member challenged. A tie vote on a motion for a finding of not guilty or on a motion relating to the question of the accused's sanity is a determination against the accused. A tie vote on any other question is a determination in favor of the accused.
History:
L. 1972, ch. 203, § 48-2717; L. 1988, ch. 191, § 34; July 1.
2023 Kansas Statutes › Chapter 48 - Militia, Defense And Public Safety › Article 27 - Code Of Military Justice; Trial Procedure › 48-2718 Court to announce action.

48-2718.
Court to announce action.
A court-martial shall announce its findings and sentence to the parties as soon as determined.
History:
L. 1972, ch. 203, § 48-2718; July 1.
2023 Kansas Statutes › Chapter 48 - Militia, Defense And Public Safety › Article 27 - Code Of Military Justice; Trial Procedure › 48-2719 (KCMJ Art. 54) Record of trial.

48-2719.
(KCMJ Art. 54) Record of trial.
(a) Each general court-martial shall keep a separate record of the proceedings in each case brought before it and the record shall be authenticated by the signature of the military judge. If the record cannot be authenticated by the military judge by reason of the judge's death, disability or absence, it shall be authenticated by the signature of the trial counsel or by that of a member if the trial counsel is unable to authenticate it by reason of the trial counsel's death, disability or absence. In a court-martial consisting of only a military judge, the record shall be authenticated by the court reporter under the same conditions which would impose such a duty on a member under this subsection.
(b) Each special and summary court-martial shall keep a separate record of the proceedings in each case and the record shall be authenticated in the manner required by such regulations as the governor may prescribe.
(c) (1) A complete record of the proceedings and testimony shall be prepared:
(A) In each general court-martial case in which the sentence adjudged includes a dismissal, a discharge or, if the sentence adjudged does not include a discharge, any other punishment which exceeds that which may otherwise be adjudged by a special court-martial; and
(B) in each special court-martial case in which the sentence adjudged includes a bad-conduct discharge.
(2) In all other court-martial cases, the record shall contain such matters as may be prescribed by regulations of the governor.
(d) A copy of the record of the proceedings of each general court-martial shall be given to the accused as soon as it is authenticated. If a verbatim record of trial by general court-martial is not required by subsection (a), but has been made, the accused may purchase such a record under such regulations as the governor may prescribe.
History:
L. 1972, ch. 203, § 48-2719; L. 1988, ch. 191, § 35; July 1.
2023 Kansas Statutes › Chapter 48 - Militia, Defense And Public Safety › Article 28 - Code Of Military Justice; Sentences › 48-2801 Cruel and unusual punishments prohibited.

48-2801.
Cruel and unusual punishments prohibited.
Cruel or unusual punishment may not be adjudged by any court-martial or inflicted upon any person subject to this code.
History:
L. 1972, ch. 203, § 48-2801; July 1.
2023 Kansas Statutes › Chapter 48 - Militia, Defense And Public Safety › Article 28 - Code Of Military Justice; Sentences › 48-2802 Maximum punishment.

48-2802.
Maximum punishment.
The punishment which a court-martial may direct for an offense may not exceed limits prescribed by this code.
History:
L. 1972, ch. 203, § 48-2802; July 1.
2023 Kansas Statutes › Chapter 48 - Militia, Defense And Public Safety › Article 28 - Code Of Military Justice; Sentences › 48-2803 (KCMJ Art. 57) Effective date of sentences.

48-2803.
(KCMJ Art. 57) Effective date of sentences.
(a) No forfeiture may extend to any pay accrued before the date on which the sentence is approved by the person acting under K.S.A. 48-2901 and amendments thereto.
(b) Any period of confinement included in a sentence of a court-martial begins to run from the date the sentence is adjudged by the court-martial but periods during which the sentence to confinement is suspended or deferred shall be excluded in computing the service of the term of confinement. Regulations prescribed by the governor may provide that sentences of confinement may not be executed until approved by designated officers.
(c) All other sentences of courts-martial are effective on the date ordered executed.
(d) On application by an accused who is under sentence to confinement that has not been ordered executed, the convening authority or, if the accused is no longer under the convening authority's jurisdiction, the officer exercising general court-martial jurisdiction over the command to which the accused is currently assigned, may in sole discretion defer service of the sentence to confinement. The deferment shall terminate when the sentence is ordered executed. The deferment may be rescinded at any time by the officer who granted it or, if the accused is no longer under the officer's jurisdiction, by the officer exercising general court-martial jurisdiction over the command to which the accused is currently assigned.
History:
L. 1972, ch. 203, § 48-2803; L. 1988, ch. 191, § 36; July 1.
2023 Kansas Statutes › Chapter 48 - Militia, Defense And Public Safety › Article 28 - Code Of Military Justice; Sentences › 48-2804 Execution of confinement.

48-2804.
Execution of confinement.
(a) A sentence of confinement adjudged by a military court, whether or not the sentence includes discharge or dismissal, and whether or not the discharge or dismissal has been executed, may be carried into execution by confinement in any place of confinement under the control of any of the forces of the state military forces or in any jail, penitentiary, or prison designed for the purpose. Persons so confined in a jail, penitentiary, or prison are subject to the same discipline and treatment as persons confined or committed to the jail, penitentiary, or prison by the courts of the state or of any political subdivision thereof.
(b) The omission of the words "hard labor" from any sentence or punishment of a court-martial adjudging confinement does not deprive the authority executing that sentence or punishment of the power to require hard labor as a part of the punishment.
(c) The keepers, officers, and wardens of city or county jails and of other jails, penitentiaries, or prisons designated by the governor, or by such person as the governor may authorize to act under K.S.A. 48-2205, shall receive persons ordered into confinement before trial and persons committed to confinement by a military court and shall confine them according to law. No such keeper, officer, or warden may require payment of any fee or charge for so receiving or confining a person.
History:
L. 1972, ch. 203, § 48-2804; July 1.
2023 Kansas Statutes › Chapter 48 - Militia, Defense And Public Safety › Article 29 - Code Of Military Justice; Review Of Courts-martial › 48-2915 (KCMJ Art. 59) Error of law; lesser included offense.

48-2915.
(KCMJ Art. 59) Error of law; lesser included offense.
(a) A finding or sentence of a court-martial may not be held incorrect on the ground of an error of law unless the error materially prejudices the substantial rights of the accused.
(b) Any reviewing authority with the power to approve or affirm a finding of guilty may approve or affirm, instead, so much of the finding as includes a lesser included offense.
History:
L. 1988, ch. 191, § 37; July 1.
2023 Kansas Statutes › Chapter 48 - Militia, Defense And Public Safety › Article 29 - Code Of Military Justice; Review Of Courts-martial › 48-2917 (KCMJ Art. 61) Waiver or withdrawal of appeal.

48-2917.
(KCMJ Art. 61) Waiver or withdrawal of appeal.
(a) In each case subject to appellate review under K.S.A. 48-2922 or subsection (a) of K.S.A. 48-2924, the accused may file with the convening authority a statement expressly waiving the right of the accused to such review. Such a waiver shall be signed by both the accused and by defense counsel and must be filed within 10 days after the action under subsection (a) of K.S.A. 48-2916 is served on the accused or on defense counsel. The convening authority or other person taking such action, for good cause, may extend the period for such filing by not more than 30 days.
(b) The accused may withdraw an appeal at any time.
(c) A waiver of the right to appellate review or the withdrawal of an appeal under this section bars review under K.S.A. 48-2922 or subsection (a) of K.S.A. 48-2924.
History:
L. 1988, ch. 191, § 39; July 1.
2023 Kansas Statutes › Chapter 48 - Militia, Defense And Public Safety › Article 29 - Code Of Military Justice; Review Of Courts-martial › 48-2918 (KCMJ Art. 62) Appeal by the state.

48-2918.
(KCMJ Art. 62) Appeal by the state.
(a) (1) In a trial by court-martial in which a military judge presides and in which a punitive discharge may be adjudged, the adjutant general may appeal an order or ruling of the military judge which terminates the proceedings with respect to a charge or specification or which excludes evidence that is substantial proof of a fact material in the proceeding. However, the adjutant general may not appeal an order or ruling that is, or that amounts to, a finding of not guilty with respect to the charge or specification.
(2) An appeal of an order or ruling may not be taken unless the trial counsel provides the military judge with written notice of appeal from the order or ruling within 72 hours of the order or ruling. Such notice shall include a certification by the trial counsel that the appeal is not taken for the purpose of delay and, if the order or ruling appealed is one which excludes evidence, that the evidence excluded is substantial proof of a fact material in the proceeding.
(3) An appeal under this section shall be diligently prosecuted by appellate counsel.
(b) An appeal under this section shall be forwarded by a means prescribed under regulations of the governor for the adjutant general directly to the court of military review and shall, whenever practicable, have priority over all other proceedings before that court. In ruling on an appeal under this section, the court of military review may act only with respect to matters of law, notwithstanding subsection (c) of K.S.A. 48-2922.
(c) Any period of delay resulting from an appeal under this section shall be excluded in deciding any issue regarding denial of a speedy trial unless an appropriate authority determines that the appeal was filed solely for the purpose of delay with the knowledge that it was totally frivolous and without merit.
History:
L. 1988, ch. 191, § 40; July 1.
2023 Kansas Statutes › Chapter 48 - Militia, Defense And Public Safety › Article 29 - Code Of Military Justice; Review Of Courts-martial › 48-2919 (KCMJ Art. 63) Rehearings.

48-2919.
(KCMJ Art. 63) Rehearings.
Each rehearing under this code shall take place before a court-martial composed of members not members of the court-martial which first heard the case. Upon a rehearing the accused may not be retried for any offense of which the accused was found not guilty by the first court-martial, and no sentence in excess of or more severe than the original sentence may be imposed, unless the sentence is based upon a finding of guilty of an offense not considered upon the merits in the original proceedings or unless the sentence prescribed for the offense is mandatory. If the sentence approved after the first court-martial was in accordance with a pretrial agreement and the accused at a rehearing changes the accused's plea with respect to the charges or specifications upon which the pretrial agreement was based, or otherwise does not comply with the pretrial agreement, the sentence as to those charges or specifications may include any punishment not in excess of that lawfully adjudged at the first court-martial.
History:
L. 1988, ch. 191, § 41; July 1.
2023 Kansas Statutes › Chapter 48 - Militia, Defense And Public Safety › Article 29 - Code Of Military Justice; Review Of Courts-martial › 48-2920 (KCMJ Art. 64) Review by a judge advocate.

48-2920.
(KCMJ Art. 64) Review by a judge advocate.
(a) Each case in which there has been a finding of guilty that is not reviewed under K.S.A. 48-2922 or subsection (a) of K.S.A. 48-2924 shall be reviewed by a judge advocate under regulations of the governor. A judge advocate may not review a case under this subsection if the judge advocate has acted in the same case as an accuser, investigating officer, member of the court, military judge or counsel or has otherwise acted on behalf of the prosecution or defense. The judge advocate's review shall be in writing and shall contain the following:
(1) Conclusions as to whether:
(A) The court had jurisdiction over the accused and the offense;
(B) the charge and specification stated an offense; and
(C) the sentence was within the limits prescribed as a matter of law.
(2) A response to each allegation of error made in writing by the accused.
(3) If the case is sent for action under subsection (b), a recommendation as to the appropriate action to be taken and an opinion as to whether corrective action is required as a matter of law.
(b) The record of trial and related documents in each case reviewed under subsection (a) shall be sent for action to the person exercising general court-martial jurisdiction over the accused at the time the court was convened, or to that person's successor in command, if:
(1) The judge advocate who reviewed the case recommends corrective action;
(2) the sentence approved under subsection (c) of K.S.A. 48-2916 extends to dismissal, a bad-conduct or dishonorable discharge or confinement for more than six months; or
(3) such action is otherwise required by regulations of the governor.
(c) (1) The person to whom the record of trial and related documents are sent under subsection (b) may:
(A) Disapprove or approve the findings or sentence, in whole or in part;
(B) remit, commute or suspend the sentence in whole or in part;
(C) except where the evidence was insufficient at the trial to support the findings, order a rehearing on the findings, on the sentence or on both; or
(D) dismiss the charges.
(2) If a rehearing is ordered but the convening authority finds a rehearing impracticable, the convening authority shall dismiss the charges.
(3) If the opinion of the judge advocate in the judge advocate's review under subsection (a) is that corrective action is required as a matter of law and if the person required to take action under subsection (b) does not take action that is at least as favorable to the accused as that recommended by the judge advocate, the record of trial and action thereon shall be sent to the judge advocate general for review under subsection (b) of K.S.A.. 48-2924.
History:
L. 1988, ch. 191, § 42; July 1.
2023 Kansas Statutes › Chapter 48 - Militia, Defense And Public Safety › Article 29 - Code Of Military Justice; Review Of Courts-martial › 48-2921 (KCMJ Art. 65) Disposition of records.

48-2921.
(KCMJ Art. 65) Disposition of records.
(a) In a case subject to appellate review under K.S.A. 48-2922 or subsection (a) of K.S.A. 48-2924 in which the right to such review is not waived, or an appeal is not withdrawn, under K.S.A. 48-2917, the record of trial and action thereon shall be transmitted to the judge advocate general for appropriate action.
(b) Except as otherwise required by this code, all other records of trial and related documents shall be transmitted and disposed of as the governor may prescribe by regulation.
History:
L. 1988, ch. 191, § 43; July 1.
2023 Kansas Statutes › Chapter 48 - Militia, Defense And Public Safety › Article 29 - Code Of Military Justice; Review Of Courts-martial › 48-2923 (KCMJ Art. 67) Review by Kansas court of appeals.

48-2923.
(KCMJ Art. 67) Review by Kansas court of appeals.
(a) The Kansas court of appeals shall review the record in:
(1) All cases reviewed by a court of military review which the judge advocate general orders sent to the court of appeals for review; and
(2) all cases reviewed by a court of military review in which, upon petition of the accused and on good cause shown, the court of appeals has granted a review.
(b) The accused may petition the Kansas court of appeals for review of a decision of a court of military review within 60 days from the earlier of:
(1) The date on which the accused is notified of the decision of the court of military review; or
(2) the date on which a copy of the decision of the court of military review, after being served on appellate counsel of record for the accused, if any, is deposited 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 the accused's official service record. The court of appeals shall act upon such a petition promptly in accordance with the rules of the court.
(c) In any case reviewed by it, the Kansas court of appeals may act only with respect to the findings and sentence as approved by the convening authority and as affirmed or set aside as incorrect in law by the court of military review. In a case which the judge advocate general orders sent to the court of appeals, that action need be taken only with respect to the issues raised by the judge advocate general. In a case reviewed upon petition of the accused, that action need be taken only with respect to issues specified in the grant of review. The court of appeals shall take action only with respect to matters of law.
(d) If the Kansas court of appeals sets aside the findings and sentence, it may, except where the setting aside is based on lack of sufficient evidence in the record to support the findings, order a rehearing. If it sets aside the findings and sentence and does not order a rehearing, it shall order that the charges be dismissed.
(e) After it has acted on a case, the Kansas court of appeals may direct the judge advocate general to return the record to the court of military review for further review in accordance with the decision of the court. Otherwise, unless there is to be further action by the governor, the judge advocate general shall instruct the convening authority to take action in accordance with that decision. If the court has ordered a rehearing, but the convening authority finds a rehearing impracticable, the convening authority may dismiss the charges.
History:
L. 1988, ch. 191, § 45; July 1.
2023 Kansas Statutes › Chapter 48 - Militia, Defense And Public Safety › Article 29 - Code Of Military Justice; Review Of Courts-martial › 48-2924 (KCMJ Art. 69) Review in the office of the judge advocate general.

48-2924.
(KCMJ Art. 69) Review in the office of the judge advocate general.
(a) The record of trial in each general court-martial that is not otherwise reviewed under K.S.A. 48-2922 shall be examined in the office of the judge advocate general if there is a finding of guilty and the accused does not waive or withdraw the accused's right to appellate review under K.S.A. 48-2917. If any part of the findings or sentence is found to be unsupported in law or if reassessment of the sentence is appropriate, the judge advocate general may modify or set aside the findings or sentence or both. If the judge advocate general so directs, the record shall be reviewed by a court of military review under K.S.A. 48-2922, but in that event there may be no further review by the Kansas court of appeals except under subsection (b)(2) of K.S.A. 48-2923.
(b) The findings or sentence, or both, in a court-martial case not reviewed under subsection (a) or under K.S.A. 48-2922 may be modified or set aside, in whole or in part, by the judge advocate general on the ground of newly discovered evidence, fraud on the court, lack of jurisdiction over the accused or the offense, error prejudicial to the substantial rights of the accused, or the appropriateness of the sentence. If such a case is considered upon application of the accused, the application must be filed in the office of the judge advocate general by the accused on or before the last day of the two-year period beginning on the date the sentence is approved under subsection (c) of K.S.A. 48-2916, unless the accused establishes good cause for failure to file within that time.
(c) If the judge advocate general sets aside the findings or sentence, the judge advocate general may, except when the setting aside is based on lack of sufficient evidence in the record to support the findings, order a rehearing. If the judge advocate general sets aside the findings and sentence and does not order a rehearing, the judge advocate general shall order that the charges be dismissed. If the judge advocate general orders a rehearing but the convening authority finds a rehearing impractical, the convening authority shall dismiss the charges.
History:
L. 1988, ch. 191, § 46; July 1.
2023 Kansas Statutes › Chapter 48 - Militia, Defense And Public Safety › Article 29 - Code Of Military Justice; Review Of Courts-martial › 48-2925 (KCMJ Art. 70) Appellate counsel.

48-2925.
(KCMJ Art. 70) Appellate counsel.
(a) The judge advocate general shall detail in the judge advocate general's office one or more commissioned officers as appellate government counsel, and one or more commissioned officers as appellate defense counsel, who are qualified under subsection (b)(2) of K.S.A. 48-2905.
(b) Appellate government counsel shall represent the state of Kansas before the court of military review or the Kansas court of appeals when directed to do so by the judge advocate general. Appellate government counsel may represent the state before the Kansas supreme court in cases arising under this chapter when requested to do so by the attorney general.
(c) Appellate defense counsel shall represent the accused before the court of military review, the Kansas court of appeals or the Kansas supreme court:
(1) When requested by the accused; or
(2) when the state is represented by counsel.
(d) The accused has the right to be represented before the court of military review, the Kansas court of appeals, or the Kansas supreme court by civilian counsel if provided by the accused and at the accused's own expense.
(e) Military appellate counsel shall also perform such other functions in connection with the review of court-martial cases as the judge advocate directs.
History:
L. 1988, ch. 191, § 47; July 1.
2023 Kansas Statutes › Chapter 48 - Militia, Defense And Public Safety › Article 29 - Code Of Military Justice; Review Of Courts-martial › 48-2926 (KCMJ Art. 71) Execution of sentence; suspension of sentence.

48-2926.
(KCMJ Art. 71) Execution of sentence; suspension of sentence.
(a) If, in the case of a commissioned officer, the sentence of a court-martial extends to dismissal, that part of the sentence providing for dismissal may not be executed until approved by the adjutant general. In such a case, the governor may commute, remit or suspend the sentence, or any part of the sentence, as the governor sees fit. In time of war or national emergency, the governor may commute a sentence of dismissal to reduction to any enlisted grade. A person so reduced may be required to serve for the duration of the war or emergency and six months thereafter.
(b) (1) If a sentence extends to dismissal, or a dishonorable or bad-conduct discharge and if the right of the accused to appellate review is not waived, and an appeal is not withdrawn, under K.S.A. 48-2917 that part of the sentence extending to dismissal or a dishonorable or bad-conduct discharge may not be executed until there is a final judgment as to the legality of the proceedings and, with respect to dismissal, approval under subsection (a) as appropriate. A judgment as to legality of the proceedings is final in such cases when review is completed by a court of military review and:
(A) The time for the accused to file a petition for review by the Kansas court of appeals has expired and the accused has not filed a timely petition for such review and the case is not otherwise under review by that court;
(B) such a petition is rejected by the Kansas court of appeals; or
(C) review is completed in accordance with the judgment of the Kansas court of appeals.
(2) If a sentence extends to dismissal or a dishonorable or bad-conduct discharge and if the right of the accused to appellate review is waived, or an appeal is withdrawn, under K.S.A. 48-2917, that part of the sentence extending to dismissal or a bad-conduct or dishonorable discharge may not be executed until review of the case by a judge advocate, and any action on that review, under K.S.A. 48-2920 is completed. Any other part of a court-martial sentence may be ordered executed by the convening authority or other person acting on the case under K.S.A. 48-2916 when approved by such person under that section.
(c) The convening authority or other person acting on the case under K.S.A. 48-2916 may suspend the execution of any sentence or part thereof.
History:
L. 1988, ch. 191, § 48; July 1.
2023 Kansas Statutes › Chapter 48 - Militia, Defense And Public Safety › Article 29 - Code Of Military Justice; Review Of Courts-martial › 48-2927 (KCMJ Art. 72) Vacation of suspension.

48-2927.
(KCMJ Art. 72) Vacation of suspension.
(a) Before the vacation of the suspension of a special court-martial sentence which is approved includes a bad-conduct discharge, or of any general court-martial sentence, the officer having special court-martial jurisdiction over the probationer shall hold a hearing on the alleged violation of probation. The probationer shall be represented at the hearing by counsel if the probationer so desires.
(b) The record of the hearing and the recommendation of the officer having special court-martial jurisdiction shall be sent for action to the officer exercising general court-martial jurisdiction over the probationer. If the officer exercising such jurisdiction over the probationer vacates the suspension, any unexecuted part of the sentence, except a dismissal, shall be executed, subject to applicable restrictions in subsection (b) of K.S.A. 48-2926. The vacation of the suspension of a dismissal is not effective until approved by the adjutant general.
(c) The suspension of any other sentence may be vacated by any authority competent to convene, for the command in which the accused is serving or assigned, a court of the kind that imposed the sentence.
History:
L. 1988, ch. 191, § 49; July 1.
2023 Kansas Statutes › Chapter 48 - Militia, Defense And Public Safety › Article 29 - Code Of Military Justice; Review Of Courts-martial › 48-2928 (KCMJ Art. 73) Petition for new trial.

48-2928.
(KCMJ Art. 73) Petition for new trial.
At any time within two years after approval by the convening authority of a court-martial sentence, the accused may petition the judge advocate general for a new trial on the grounds of newly discovered evidence or fraud on the court. If the accused's case is pending before a court of military review or before the Kansas court of appeals, the judge advocate general shall refer the petition to the appropriate court for action. Otherwise the judge advocate general shall act upon the petition.
History:
L. 1988, ch. 191, § 50; July 1.
2023 Kansas Statutes › Chapter 48 - Militia, Defense And Public Safety › Article 29 - Code Of Military Justice; Review Of Courts-martial › 48-2929 (KCMJ Art. 74) Remission and suspension.

48-2929.
(KCMJ Art. 74) Remission and suspension.
(a) The adjutant general or commanding officer may remit or suspend any part or amount of the unexecuted part of any sentence, including all uncollected forfeitures other than a sentence approved by the governor.
(b) The adjutant general may, for good cause, substitute an administrative form of discharge for a discharge or dismissal executed in accordance with the sentence of a court-martial.
History:
L. 1988, ch. 191, § 51; July 1.