2018 Illinois Compiled Statutes
Chapter 20 - EXECUTIVE BRANCH
20 ILCS 1807/ - Illinois Code of Military Justice.
Part IX - Post-Trial Procedure And Review Of Courts-Martial
(20 ILCS 1807/Pt. IX heading)
(20 ILCS 1807/59)
Sec. 59. Article 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.
(Source: P.A. 99-796, eff. 1-1-17.)
(20 ILCS 1807/60)
Sec. 60. Article 60. Action by the convening authority.
(a) The findings and sentence of a court-martial shall be reported promptly to the convening authority after the announcement of the sentence.
(b)(1) The accused may submit to the convening authority matters for consideration by the convening authority with respect to the findings and the sentence. Any such submission shall be in writing. Such a submission shall be made within 30 days after the accused has been given an authenticated record of trial and, if applicable, the recommendation of a judge advocate under subsection (d).
(2) If the accused shows that additional time is required for the accused to submit such matters, the convening authority or other person taking action under this Article, for good cause, may extend the applicable period under paragraph (1) for not more than an additional 20 days.
(3) The accused may waive the right to make a submission to the convening authority under paragraph (1). Such a waiver must be made in writing and may not be revoked. For the purposes of paragraph (2) of subsection (c), the time within which the accused may make a submission under this subsection (b) shall be deemed to have expired upon the submission of such a waiver to the convening authority.
(c)(1) The authority under this Article to modify the findings and sentence of a court-martial is a matter of command prerogative involving the sole discretion of the convening authority. If it is impractical for the convening authority to act, the convening authority shall forward the case to a person exercising general court-martial jurisdiction who may take action under this Article.
(2) Action on the sentence of a court-martial shall be taken by the convening authority or by another person authorized to act under this Article. Such action may be taken only after consideration of any matters submitted by the accused under subsection (b) or after the time for submitting such matters expires, whichever is earlier. The convening authority or other person taking such action, in that person's sole discretion may approve, disapprove, commute, or suspend the sentence in whole or in part.
(3) Action on the findings of a court-martial by the convening authority or other person acting on the sentence is not required. However, such person, in the person's sole discretion may:
(A) dismiss any charge or specification by setting
aside a finding of guilty thereto; or
(B) change a finding of guilty to a charge or
specification to a finding of guilty to an offense that is a lesser included offense of the offense stated in the charge or specification.
(d) Before acting under this Article on any general or special court-martial case in which there is a finding of guilt, the convening authority or other person taking action under this Article must obtain the written concurrence of the State Judge Advocate by means of legal review. The convening authority or other person taking action under this Article shall refer the record of trial to the judge advocate, and the judge advocate shall use such record in the preparation of the review. The review of the judge advocate shall include such matters as may be prescribed by regulation and shall be served on the accused, who may submit any matter in response under subsection (b). Failure to object in the response to the legal review or to any matter attached to the recommendation waives the right to object thereto.
(e)(1) The convening authority or other person taking action under this Article, in the person's sole discretion, may order a proceeding in revision or a rehearing.
(2) A proceeding in revision may be ordered if there is an apparent error or omission in the record or if the record shows improper or inconsistent action by a court-martial with respect to the findings or sentence that can be rectified without material prejudice to the substantial rights of the accused. In no case, however, may a proceeding in revision:
(A) reconsider a finding of not guilty of any
specification or a ruling which amounts to a finding of not guilty;
(B) reconsider a finding of not guilty of any
charge, unless there has been a finding of guilty under a specification laid under that charge, which sufficiently alleges a violation of some Article of this Code; or
(C) increase the severity of the sentence.
(3) A rehearing may be ordered by the convening authority or other person taking action under this Article if that person disapproves the findings and sentence and states the reasons for disapproval of the findings. If such person disapproves the findings and sentence and does not order a rehearing, that person shall dismiss the charges. A rehearing as to the findings may not be ordered where there is a lack of sufficient evidence in the record to support the findings. A rehearing as to the sentence may be ordered if the convening authority or other person taking action under this subsection disapproves the sentence.
(Source: P.A. 99-796, eff. 1-1-17.)
(20 ILCS 1807/61)
Sec. 61. Article 61. Withdrawal of appeal.
(a) In each case subject to appellate review under this Code, the accused may file with the convening authority a statement expressly withdrawing the right of the accused to such appeal. Such a withdrawal shall be signed by both the accused and his defense counsel and must be filed in accordance with appellate procedures as provided by law.
(b) The accused may withdraw an appeal at any time in accordance with appellate procedures as provided by law.
(Source: P.A. 99-796, eff. 1-1-17.)
(20 ILCS 1807/62)
Sec. 62. Article 62. Appeal by the State.
(a)(1) In a trial by court-martial in which a punitive discharge may be adjudged, the State may appeal the following, other than a finding of not guilty with respect to the charge or specification by the members of the court-martial, or by a judge in a bench trial so long as it is not made in reconsideration:
(A) An order or ruling of the military judge which
terminates the proceedings with respect to a charge or specification.
(B) An order or ruling which excludes evidence that
is substantial proof of a fact material in the proceeding.
(C) An order or ruling which directs the disclosure
of classified information.
(D) An order or ruling which imposes sanctions for
nondisclosure of classified information.
(E) A refusal of the military judge to issue a
protective order sought by the State to prevent the disclosure of classified information.
(F) A refusal by the military judge to enforce an
order described in subparagraph (E) that has previously been issued by appropriate authority.
(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 Article shall be diligently prosecuted as provided by law.
(b) An appeal under this Article shall be forwarded to the court prescribed in Article 67a of this Code. In ruling on an appeal under this Article, that court may act only with respect to matters of law.
(c) Any period of delay resulting from an appeal under this Article 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.
(Source: P.A. 99-796, eff. 1-1-17.)
(20 ILCS 1807/63)
Sec. 63. Article 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 tried for any offense of which he was found not guilty by the first court-martial, and no sentence in excess of or more severe than the original sentence may be approved, 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 the rehearing changes a 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 approved sentence as to those charges or specifications may include any punishment not in excess of that lawfully adjudged at the first court-martial.
(Source: P.A. 99-796, eff. 1-1-17.)
(20 ILCS 1807/64)
Sec. 64. Article 64. Review by the senior force judge advocate.
(a) Each general and special court-martial case in which there has been a finding of guilty shall be reviewed by the senior force judge advocate, or a designee. The senior force judge advocate, or designee, may not review a case under this subsection if that person 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 senior force 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 Adjutant General if:
(1) the judge advocate who reviewed the case
recommends corrective action;
(2) the sentence approved under subsection (c) of
Article 60 of this Code extends to dismissal, a bad-conduct or dishonorable discharge, or confinement for more than 6 months; or
(3) such action is otherwise required by regulations
of the Adjutant General.
(c)(1) The Adjutant General 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 senior force judge advocate, or designee, in the senior force judge advocate's review under subsection (a) is that corrective action is required as a matter of law and if the Adjutant General 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 Governor for review and action as deemed appropriate.
(d) The senior force judge advocate, or a designee, may review any case in which there has been a finding of not guilty of all charges and specifications. The senior force judge advocate, or designee, may not review a case under this subsection if that person 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 senior force judge advocate's review shall be limited to questions of subject matter jurisdiction.
(e) The record of trial and related documents in each case reviewed under subsection (d) shall be sent for action to the Adjutant General. The Adjutant General may:
(1) when subject matter jurisdiction is found to be
lacking, void the court-martial ab initio, with or without prejudice to the Government, as the Adjutant General deems appropriate; or
(2) return the record of trial and related
documents to the senior force judge advocate for appeal by the Government as provided by law.
(Source: P.A. 99-796, eff. 1-1-17.)
(20 ILCS 1807/65)
Sec. 65. Article 65. Disposition of records after review by the convening authority. Except as otherwise required by this Code, all records of trial and related documents shall be transmitted and disposed of as prescribed by regulation and provided by law.
(Source: P.A. 99-796, eff. 1-1-17.)
(20 ILCS 1807/66)
Sec. 66. Article 66. (Reserved).
(Source: P.A. 99-796, eff. 1-1-17.)
(20 ILCS 1807/67)
Sec. 67. Article 67. (Reserved).
(Source: P.A. 99-796, eff. 1-1-17.)
(20 ILCS 1807/67a)
Sec. 67a. Article 67a. Review by State Appellate Authority. Decisions of a court-martial are from a court with jurisdiction to issue misdemeanor and felony convictions. All appeals from final decisions of a court-martial shall be to the Illinois Appellate Court in the same manner as are final decisions of a circuit court in accordance with the Appellate Court Act. All such appeals shall be to the Illinois Appellate Court for the Fourth District. No appeal from a judgment entered upon a plea of guilty shall be taken except in accordance with applicable law and Supreme Court Rules. Unless waived, an accused may appeal as a matter of right a finding of guilt resulting in an approved sentence of one-year confinement or more, or in a dismissal for a commissioned officer or warrant officer, a dishonorable discharge, or a bad-conduct discharge. The appellate rights and procedures to be followed shall be those provided by applicable law and Supreme Court Rules for criminal appeals.
(Source: P.A. 99-796, eff. 1-1-17.)
(20 ILCS 1807/68)
Sec. 68. Article 68. (Reserved).
(Source: P.A. 99-796, eff. 1-1-17.)
(20 ILCS 1807/69)
Sec. 69. Article 69. (Reserved).
(Source: P.A. 99-796, eff. 1-1-17.)
(20 ILCS 1807/70)
Sec. 70. Article 70. Appellate counsel.
(a) The Attorney General shall act as appellate government counsel to represent the State in the review or appeal of cases specified in Article 67a of this Code and before any federal court. The Attorney General may appoint a judge advocate nominated by the senior force judge advocate as a Special Assistant Attorney General to act as appellate government counsel to represent the State. Such appointment as a Special Assistant Attorney General shall be at the discretion of the Attorney General.
(b) Upon an appeal by this State, an accused has the right to be represented by detailed military counsel before any reviewing authority and before any appellate court.
(c) Upon the appeal by an accused, the accused has the right to be represented by military counsel before any reviewing authority.
(d) Upon the request of an accused entitled to be so represented, the senior force judge advocate shall appoint a judge advocate to represent the accused in the review or appeal of cases specified in subsections (b) and (c) of this Article.
(e) An accused may be represented by civilian appellate counsel at no expense to this State.
(Source: P.A. 99-796, eff. 1-1-17.)
(20 ILCS 1807/71)
Sec. 71. Article 71. Execution of sentence; suspension of sentence.
(a) If the sentence of the court-martial 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 Article 61 of this Code, 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. A judgment as to the legality of the proceedings is final in such cases when review is completed by the Illinois Appellate Court for the Fourth District as prescribed in Article 67a of this Code, and is deemed final by the law of this State.
(b) If the sentence of the court-martial 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 Article 61 of this Code, that part of the sentence extending to dismissal or a dishonorable or bad-conduct discharge may not be executed until review of the case by the senior force judge advocate and any action on that review under Article 64 of this Code 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 Article 60 of this Code when so approved under that Article.
(Source: P.A. 99-796, eff. 1-1-17.)
(20 ILCS 1807/72)
Sec. 72. Article 72. Vacation of suspension.
(a) Before the vacation of the suspension of a special court-martial sentence, which as 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 an alleged violation of probation. The probationer shall be represented at the hearing by military 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 vacates the suspension, any unexecuted part of the sentence, except a dismissal, shall be executed, subject to applicable restrictions in this Code.
(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.
(Source: P.A. 99-796, eff. 1-1-17.)
(20 ILCS 1807/73)
Sec. 73. Article 73. Petition for a new trial. At any time within 2 years after approval by the convening authority of a court-martial sentence the accused may petition the Adjutant General for a new trial on the grounds of newly discovered evidence or fraud on the court-martial.
(Source: P.A. 99-796, eff. 1-1-17.)
(20 ILCS 1807/74)
Sec. 74. Article 74. Remission and suspension.
(a) 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 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 Governor 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.
(Source: P.A. 99-796, eff. 1-1-17.)
(20 ILCS 1807/75)
Sec. 75. Article 75. Restoration.
(a) Under such regulations as may be prescribed, all rights, privileges, and property affected by an executed part of a court-martial sentence which has been set aside or disapproved, except an executed dismissal or discharge, shall be restored unless a new trial or rehearing is ordered and such executed part is included in a sentence imposed upon the new trial or rehearing.
(b) If a previously executed sentence of dishonorable or bad-conduct discharge is not imposed on a new trial, the Governor may substitute therefor a form of discharge authorized for administrative issuance unless the accused is to serve out the remainder of the accused's enlistment.
(c) If a previously executed sentence of dismissal is not imposed on a new trial, the Governor may substitute therefor a form of discharge authorized for administrative issue, and the commissioned officer dismissed by that sentence may be reappointed by the Governor alone to such commissioned grade and with such rank as in the opinion of the Governor that former officer would have attained had he not been dismissed. The reappointment of such a former officer shall be without regard to the existence of a vacancy and shall affect the promotion status of other officers only insofar as the Governor may direct. All time between the dismissal and the reappointment shall be considered as actual service for all purposes, including the right to pay and allowances, as permitted by applicable financial management regulations.
(Source: P.A. 99-796, eff. 1-1-17.)
(20 ILCS 1807/76)
Sec. 76. Article 76. Finality of proceedings, findings, and sentences. The appellate review of records of trial provided by this Code, the proceedings, findings, and sentences of courts-martial as approved, reviewed, or affirmed as required by this Code, and all dismissals and discharges carried into execution under sentences by courts-martial following approval, review, or affirmation as required by this Code, are final and conclusive. Orders publishing the proceedings of courts-martial and all action taken pursuant to those proceedings are binding upon all departments, courts, agencies, and officers of the United States and the several states, subject only to action upon a petition for a new trial as provided in Article 73 of this Code and to action under Article 74 of this Code.
(Source: P.A. 99-796, eff. 1-1-17.)
(20 ILCS 1807/76a)
Sec. 76a. Article 76a. Leave required to be taken pending review of certain court-martial convictions. Under regulations prescribed, an accused who has been sentenced by a court-martial may be required to take leave pending completion of action under this Article if the sentence, as approved under Article 60 of this Code, includes an unsuspended dismissal or an unsuspended dishonorable or bad-conduct discharge. The accused may be required to begin such leave on the date on which the sentence is approved under Article 60 of this Code or at any time after such date, and such leave may be continued until the date on which action under this Article is completed or may be terminated at any earlier time.
(Source: P.A. 99-796, eff. 1-1-17.)
(20 ILCS 1807/76b)
Sec. 76b. Article 76b. Lack of mental capacity or mental responsibility; commitment of accused for examination and treatment.
(a) Persons incompetent to stand trial.
(1)(A) In general, no person may be brought to trial
by court-martial if that person is presently suffering from a mental disease or defect rendering that person mentally incompetent to the extent that he or she is unable to understand the nature of the proceedings against them or to conduct or cooperate intelligently in the defense of the case.
(B) A person is presumed to have the capacity to
stand trial unless the contrary is established.
(C) Determination of capacity of an accused to stand
trial shall be made in accordance with Rule 909 (c), (d), and (e) of the Rules for Courts-Martial as described in the Manual for Courts-Martial, United States (2012 Edition), or as provided in any subsequent rule adopted in accordance with applicable law and regulation by the President of the United States, except that references in those rules to "the Attorney General" mean the Department of Human Services.
(2) An inquiry into the mental capacity or mental
responsibility of the accused shall be conducted as provided in Rule 706 of the Rules for Courts-Martial as described in the Manual for Courts-Martial, United States (2012 Edition), or as provided in any subsequent rule adopted in accordance with applicable law and regulation by the President of the United States.
If the accused's incapacity is mental, the convening
authority may order him or her to be placed for treatment in the custody of the Department of Human Services or the convening authority may order him or her to be placed in the custody of any other appropriate public or private mental health facility or treatment program which has agreed to provide treatment to the accused. If the accused is placed in the custody of the Department of Human Services, the accused may be placed in a secure setting. During the period of time required to determine the appropriate placement, the accused shall remain confined. If, upon the completion of the placement process, the Department of Human Services determines that the accused is currently fit to stand trial, the Department shall immediately notify the convening authority and shall submit a written report within 7 days. In that circumstance, the placement shall be held pending a court hearing on the Department's report. Otherwise, upon completion of the placement process, the sheriff shall be notified and shall transport the accused to the designated facility. The placement may be ordered on either an inpatient or an outpatient basis.
In addition to other matters, the inquiry shall
determine whether there is a substantial probability that the accused will attain mental responsibility to stand trial within one year if he or she is provided with a course of treatment.
(A) In the case of a general court-martial, if
the official responsible for determining capacity to stand trial finds that there is not a substantial probability that the accused will attain mental responsibility within one year if he or she is provided with a course of treatment, the case shall proceed as provided in Section 104-23 of the Code of Criminal Procedure of 1963. In a special court-martial, the case shall proceed after the expiration of the maximum period of confinement authorized for the offense or offenses charged.
(B) If the official responsible for determining
capacity to stand trial finds that there is a probability that the accused will attain mental responsibility within one year if he or she is provided with a course of treatment, or if the official is unable to determine whether a substantial probability exists, the accused shall be ordered to undergo treatment for the purpose of rendering him or her fit in accordance with subsections (b) or (c) of Section 104-17 of the Code of Criminal Procedure of 1963.
(1) Any references to "the court" in Sections
104-23 and 104-17 of the Code of Criminal Procedure of 1963 mean the general court-martial convening authority.
(2) The general court-martial convening
authority shall, as necessary, transmit the information as provided in subsection (d) of Section 104-17 of the Code of Criminal Procedure of 1963.
(b) Persons found not guilty by reason of lack of mental responsibility.
(1) The accused is presumed to have been mentally
responsible at the time of the alleged offense. This presumption continues until the accused establishes, by clear and convincing evidence, that he or she was not mentally responsible at the time of the alleged offense. A mental condition not amounting to a lack of mental responsibility under Article 50a of this Code is not an affirmative defense.
(2) If a question is raised concerning the mental
responsibility of the accused, the military judge shall rule whether to direct an inquiry under Rule 706 of the Rules for Court-Martial as described in the Manual for Courts-Martial, United States (2012 Edition), or under any subsequent rule adopted in accordance with applicable law and regulation by the President of the United States. The issue of mental responsibility shall not be considered an interlocutory question.
(3) If a person is found not guilty only by reason of
lack of mental responsibility, the case shall proceed in accordance with State law pertaining to persons acquitted by reason of insanity as provided in Section 5-2-4 of the Unified Code of Corrections. References within that Section to "the court" or "clerk of the court" mean the general court-martial convening authority.
(4) After a finding or verdict of not guilty only by
reason of lack of mental responsibility, the accused shall be ordered to the Department of Human Services for an evaluation as to whether he or she is in need of mental health services. The order shall specify whether the evaluation shall be conducted on an inpatient or outpatient basis. If the evaluation is to be conducted on an inpatient basis, the accused shall be placed in a secure setting. A copy of the law enforcement reports, criminal charges, arrest record, jail record, record of trial, and any victim impact statement shall be sent with the order for evaluation. After the evaluation and during the period of time required to determine the appropriate placement, the accused shall remain in confinement. Individualized placement evaluations performed by the Department of Human Services shall be used to determine the most appropriate setting for forensic treatment based upon a number of factors including mental health diagnosis, proximity to surviving victims, security need, age, gender, and proximity to family. Upon completion of the placement process, the sheriff shall be notified and shall transport the accused to the designated facility.
(Source: P.A. 100-1030, eff. 8-22-18.)
