United States v. Perkinson

EVERETT, Chief Judge

(concurring in the result):

I

After the members of a court-martial have reached a sentence but before its announcement, they may reconsider the sentence for any purpose1; and often the members are expressly instructed concerning their power to reconsider. However, the need for instructions on reconsideration assumes that the members have reached a sentence which could lawfully be adjudged in its entirety. Where a proposed sentence is illegal because some facet of it is beyond the power of the court to adjudge, it should be disregarded as “void ad initium,” rather than reconsidered. United States v. Jones, 3 M.J. 348, 352 (C.M.A.1977) (Fletcher, C.J., dissenting).

In the case at bar, the judge’s inspection of the sentence worksheet did not constitute an “announcement” of the sentence. See United States v. Justice, 3 M.J. 451, 452 (C.M.A.1977). Therefore, no additional rights accrued to appellant by reason of that inspection. Thereafter, the judge sent the court members out to “vote anew on the sentence” — a procedure entirely appropriate because they had not yet arrived at a lawful sentence. Obviously, they complied with these instructions, for the sentence subsequently announced differed in every *403respect from that which originally appeared on the sentence worksheet.2

In this sequence of events, I find nothing which prejudiced appellant; and the instructions were not inadequate in any way. Thus, there is no merit to the first issue.

II

I concur with the principal opinion’s resolution of the second issue. Although in most instances I would allow a rehearing on the original charges, I am convinced that, in light of the charges, type of court-martial, and original sentence in the present case, it is “[i]n the interest of judicial economy” that the charges be dismissed. Cf. United States v. Ware, 5 M.J. 24, 25 (C.M.A.1978).

. Once the sentence is announced, however, the members “may not ... reconsider the sentence with a view to increasing its severity.” Para. 76c, Manual for Courts-Martial, United States, 1969 (Revised edition). See United States v. Justice, 3 M.J. 451 (C.M.A.1977); United States v. Jones, 3 M.J. 348 (C.M.A.1977).

. This reenforces the rationale of Judge Fletch-. er when he dissented in United States v. Jones, supra at 352. In support of his view that the sentence should be examined in its entirety in determining its lawfulness, he observed: “To hold otherwise is to subscribe at this level to a concept which prognosticates that there is no interrelationship among the several elements of the announced sentence.” As did Jones, this case “document[s] the reciprocal influence of the elements in the minds of the court.”