Reconsideration of sentence

(a) Reconsideration. Subject to this rule, a sentence may be reconsidered at any time before such sentence is announced in open session of the court. (b) Exceptions. (1) If the sentence announced in open session was less than the mandatory minimum prescribed for an offense of which the accused has been found guilty, the court that announced the sentence may reconsider such sentence upon reconsideration in accordance with subsection (e) of this rule. (2) If the sentence announced in open session exceeds the maximum permissible punishment for the offense or the jurisdictional limitation of the court- martial, the sentence may be reconsidered after announcement in accordance with subsection (e) of this rule. (3) If the sentence announced in open session is not in accordance with a sentence limitation in the plea agreement, if any, the sentence may be reconsidered after announcement in accordance with subsection (e) of this rule. (c) Clarification of sentence. A sentence may be clarified at any time before entry of judgment. (1) Sentence determined by the military judge. When a sentence determined by the military judge is ambiguous, the military judge shall call a session for clarification as soon as practicable after the ambiguity is discovered. (2) Sentence determined by members. When a sentence determined by the members is ambiguous, the military judge shall bring the matter to the attention of the members if the matter is discovered before the court-martial is adjourned. If the matter is discovered after adjournment, the military judge may call a session for clarification by the members as soon as practicable after the ambiguity is discovered. (d) Action by the convening authority. Prior to entry of judgment, if a convening authority becomes aware that the sentence of the court-martial is ambiguous, the convening authority shall return the matter to the court- martial for clarification. When the sentence of the court-martial appears to be illegal, the convening authority shall return the matter to the court-martial for correction. (e) Reconsideration procedure. A military judge may reconsider a sentence once announced only under the circumstances described in subsection (b). Any member of the court-martial may propose that a sentence determined by the members be reconsidered. (1) Instructions. When a sentence has been determined by members and reconsideration has been initiated, the military judge shall instruct the members on the procedure for reconsideration. (2) Voting. The members shall vote by secret written ballot in closed session whether to reconsider a sentence already determined by them. (3) Number of votes required. (A) Necessary findings in capital sentencing. Members may reconsider a unanimous vote under R.C.M. 1004(b)(4)(A) that an aggravating factor was proven beyond a reasonable doubt if at least one member votes to reconsider. Members may reconsider a unanimous vote under R.C.M. 1004(b)(4)(C) that any are extenuating and mitigating circumstances any substantially outweighed by aggravating circumstances admissible under R.C.M. 1001(b)(4), including the factors under R.C.M. 1004(c), if at least to reconsider. In all other one member votes circumstances, a vote under R.C.M. 1004(b)(4)(A) or (C) may be reconsidered only if at least a majority of the members vote for reconsideration. (B) Sentence Determinations. (i) With a view toward increasing. Members may reconsider a sentence with a view toward increasing the sentence only if at least a majority votes for reconsideration. (ii) With a view toward decreasing. Members may reconsider a sentence with a view toward decreasing the sentence only if: (I) In the case of a sentence which includes death, at least one member votes to reconsider; or (II) In the case of any other sentence, more than one-fourth of the members vote to reconsider. (4) Successful vote. If a vote to reconsider a sentence succeeds, the procedures in R.C.M. 1006 shall apply.