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P. Simmons
P. Simmons, Military Lawyer
Category: Military Law
Satisfied Customers: 27018
Experience:  Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.
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How long can one be placed on pre-trial restriction for? And

Customer Question

How long can one be placed on pre-trial restriction for? And if so can one be put on it back to back? And what reasons must once's command provide to put someone on pre-trial restriction?
Submitted: 1 year ago.
Category: Military Law
Expert:  P. Simmons replied 1 year ago.
Thanks for the chance to help. I am an attorney with over 12 years military law experience.

Pre Trial restriction must not run past 120 days...if it does, without delay requested from the defense, then the defense would have a good argument, under Rule for Court Martial (RCM) 707 that they charges be dismissed with prejudice.

The rule that applies is RCM 707. RCM. 707 provides that charges against an accused must be dismissed if they are not brought to trial within 120 days of the earlier of preferral, pretrial confinement, or recall to active duty under RCM. 204.

So if the delay is more than 120 days, there is an easy motion to dismiss.

Now...is it possible to make this charge prior to 120 days?

Perhaps...depends on the charges. If the charges are simple, not complex, and it is clear that the commander is dragging the process out to maximize pre trial restriction, and nothing else, the accused could file a motion under Art 13 UCMJ which prevents illegal pre-trial punishment. You would make this claim in conjunction with a 6th Amendment claim that the soldiers speedy trial rights have been violated.

This would only work if you can prove that the prosecution was deliberately delaying charges...otherwise the 120 Day RCM 707 rule will apply

P. Simmons, Military Lawyer
Category: Military Law
Satisfied Customers: 27018
Experience: Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.
P. Simmons and other Military Law Specialists are ready to help you
Customer: replied 1 year ago.

I was put on pre-trial restriction after being confined for 5 days and had not been charged as of then. Does the 120day statue stand for days prior to being charged or it does it have to be 120 consecutive days after being charged?

Expert:  P. Simmons replied 1 year ago.
It starts from the day you were confined...if you were confined, then placed on restriction after confinement, the 120 day clock continues to tick from day of confinement....
Customer: replied 1 year ago.

Can the unit put one on back to back restriction after the 120 days have surpassed? Thank you very much for the information.

Expert:  P. Simmons replied 1 year ago.
No...that would violate RCM 707...the remedy is to have the lawyer file a motion with the court to dismiss the charges. If there are no charges? Then I would file an Art 138 Complaint against the commander for illegal pre-trial restriction.
Customer: replied 1 year ago.

I already have had my Article 32 hearing and is the Article 32 considered the start of your "trial" or must the actual trial begin before the 120 day expiration period? And does it matter from the day of confinement and the day of once Article 32? If convicted is pre-trial restriction time and or confinement time credited to the accuser or is that more opinionated?

Expert:  P. Simmons replied 1 year ago.
No...Art 32 is not part of the trial. The arraignment starts the trial...so the Art 32 is part of the 120 days (the art 32 needs to happen during the 120 day period)

The commander (the one who convenes the court) can exclude time...so you want your lawyer to look carefully at this matter it sounds like you may have a valid 707 motion

Customer: replied 1 year ago.

What reasons does one's command warrant for pre-trial restriction? I have not been afforded the opportunity to attend my religious services for they are located off-base and my command knows that. What can I do to have those rights adjusted to my restriction?


 


Thank you very much sir for the information. You have greatly helped assisted me in this situation.

Expert:  P. Simmons replied 1 year ago.
The command can restrict for either

1. Flight risk

2. Risk of committing more misconduct.

You can always have your lawyer file a motion with the court to remove your restriction.

Customer: replied 1 year ago.

If they grant me a dismissal in the charges can they still charge me again with the same charges or they can by modifying them?

Expert:  P. Simmons replied 1 year ago.
Perhaps. It depends on if your attorneys can secure a "with prejudice" dismissal as opposed to a without prejudice dismissal...and this will hinge on the facts of the motion that leads to dismissal. Basically, if you can show that the delay was on purpose to punish you, or that it was due to government neglect, you may be able to get charges dismissed with prejudice (so they can not charge again)

Customer: replied 1 year ago.

You mentioned earlier that the commander can exclude time. Does this mean that it is not a requirement for him/her to do so? basically optional on the merit that the defense requests of which may be denied or just based on the commanders judgment?

Expert:  P. Simmons replied 1 year ago.
It is based on case law...there are legitimate basis to exclude delay. This is case law sensitive...your lawyer needs to do a case law search to see if the reasons for delay are applicable under current law.

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P. Simmons
P. Simmons
Military Lawyer
27018 Satisfied Customers
Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.