Motions to dismiss

(a) In general. A motion to dismiss is a request to terminate further proceedings as to one or more charges and specifications on grounds capable of resolution without trial of the general issue of guilt. (b) Grounds for dismissal. Grounds for dismissal include the following— (1) Nonwaivable grounds. A charge or specification shall be dismissed at any stage of the proceedings if the court-martial lacks jurisdiction to try the accused for the offense. (2) Waivable grounds. A charge or specification shall be dismissed upon motion made by the accused before the final adjournment of the court-martial in that case if: (A) Dismissal is required under R.C.M. 707; (B) The statute of limitations (Article 43) has run, provided that, if it appears that the accused is unaware of the right to assert the statute of limitations in bar of trial, the military judge shall inform the accused of this right; (C) The accused has previously been tried by court-martial or federal civilian court for the same offense, provided that: (i) No court-martial proceeding is a trial in the sense of this rule unless— (I) In the case of a trial by military judge alone, presentation of the evidence on the general issue of guilt has begun; (II) In the case of a trial with a military judge and members, the members have been impaneled; or (III) In the case of a summary court-martial, presentation of the evidence on the general issue of guilt has begun. (ii) No court-martial proceeding which has been terminated under R.C.M. 604(b) or R.C.M. 915 shall bar later prosecution for the same offense or offenses, if so provided in those rules; (iii) No court-martial proceeding in which an accused has been found guilty of any charge or specification is a trial in the sense of this rule until the finding of guilty has become final after review of the case has been fully completed; and (iv) No court-martial proceeding which lacked jurisdiction to try the accused for the offense is a trial in the sense of this rule. (D) Prosecution is barred by: II-68 (i) A pardon issued by the President; (ii) Immunity from prosecution granted by a person authorized to do so; or (iii) Prior punishment under Article 13 or 15 for the same offense, if that offense was punishable by confinement of one year or less. (E) The specification fails to state an offense. (3) Permissible grounds. A specification may be dismissed upon timely motion by the accused if one of the following is applicable: (A) Defective. When the specification is so defective that it substantially misled the accused, and the military judge finds that, in the interest of justice, trial should proceed on any remaining charges and specifications without undue delay; or another (B) Multiplicity. When the specification specification, is multiplicious with is unnecessary to enable the prosecution to meet the exigencies of proof through trial, review, and appellate action, and should be dismissed in the interest of justice. A charge is multiplicious if the proof of such charge also proves every element of another charge.