United States v. Hurlburt

DECISION UPON FURTHER REVIEW PER CURIAM: Tried by special court-martial, military judge alone, the accused was convicted, despite his pleas, of housebreaking, and of larceny, following his plea of guilty to wrongful appropriation, in violation of Articles 130 and 121, Uniform Code of Military Justice, 10 U.S.C. §§ 930, 921. The approved sentence extends to a bad conduct discharge and confinement at hard labor for four months. When this case was initially before us, we set aside the findings of guilty and the sentence on the ground that the supervisory authority had failed to complete the post-trial disposition of the case within the 90 days permitted by the holding in Dunlap v. Convening Authority, 23 U.S.C.M.A. 135, 48 C.M.R. 751 (1974); United States v. Hurlburt, 51 C.M.R. 599, 1 M.J. 742 (1975). Pursuant to Article 67(b)(2), Code, supra, the case was certified to the Court of Military Appeals by The Judge Advocate General. On 27 January 1976, by order, the Court of Military Appeals reversed our decision and remanded the record of trial to us. Upon further review we affirmed the findings and sentence. United States v. Hurlburt, 51 C.M.R. 789, 1 M.J. 797 (1976). Subsequently, the accused petitioned the Court of Military Appeals for review, and on 24 August 1977, by memorandum opinion and order, that Court set aside the findings of guilty to Charge I and the sentence, and ordered the case again returned to this Court. Both the convening and reviewing authorities have determined that a rehearing on Charge I and its Specification and on the sentence to be impracticable. In accordance with the Order of the Court of Military Appeals, the finding of guilty to Charge I and the specification is [601] set aside and ordered dismissed. Reassessing the sentence, we find only so much as provides for a bad conduct discharge and confinement at hard labor for two months to be appropriate. The findings of guilty of Charge II and its specification and the sentence, as modified, are AFFIRMED.