Vacation of suspension of sentence

(a) In general. Suspension of execution of the sentence of a court-martial may be vacated for violation of any condition of the suspension as provided in this rule. (b) Timeliness. (1) Violation of conditions. Vacation shall be based on a violation of any condition of suspension which occurs within the period of suspension. (2) Vacation proceedings. Vacation proceedings under this rule shall be completed within a reasonable time. (3) Order vacating the suspension. The order vacating the suspension shall be issued before the expiration of the period of suspension. (4) Interruptions to the period of suspension. Unauthorized absence of the probationer or the commencement of proceedings under this rule to vacate suspension interrupts and tolls the running of the period of suspension. (c) Confinement of probationer pending vacation (1) In general. A probationer under a suspended sentence to confinement may be confined pending action under subsection (e) of this rule, in accordance with the procedures in this subsection. (2) Who may order confinement. Any person who may order pretrial restraint under R.C.M. 304(b) may order confinement of a probationer under a suspended sentence to confinement. (3) Basis for confinement. A probationer under a suspended sentence to confinement may be ordered into confinement upon probable cause to believe the probationer violated any conditions of the suspension. (4) Preliminary review of confinement. Unless vacation proceedings under subsection (d) of this rule are completed within 7 days of imposition of confinement of the probationer (not including any delays requested by probationer), a preliminary review of the confinement shall be conducted by a neutral and detached officer appointed in accordance with regulations of the Secretary concerned. (A) Rights of confined probationer. Before the preliminary review, the probationer shall be notified in writing of: (i) The time, place, and purpose of the preliminary review, including the alleged violation(s) of the conditions of suspension; (ii) The right to be present at the preliminary review; (iii) The right to be represented at the preliminary review by civilian counsel provided by the probationer or, upon request, by military counsel detailed for this purpose; and (iv) The opportunity to be heard, to present witnesses who are reasonably available and other evidence, and the right to confront and cross-examine adverse witnesses unless the officer conducting the preliminary review determines that this would subject these witnesses to risk or harm. For purposes of this subsection, a witness is not reasonably available if the witness requires reimbursement by the United States for cost incurred in appearing, cannot appear without unduly delaying the proceedings or, if a military witness, cannot be excused from other important duties. Witness testimony may be provided in person, by video teleconference, by telephone, or by similar means of remote testimony. (B) Rules of evidence. Only Mil. R. Evid. 301, 302, 303, 305, 412, and Section V (Privileges) apply to II-107 proceedings under this rule, except Mil. R. Evid. 412(b)(1)(C) does not apply. In applying these rules to a preliminary review, the term “military judge,” as used in these rules, shall mean the officer conducting the preliminary review, who shall assume the military judge’s authority to exclude evidence from the hearing, and who shall, in discharging this duty, follow the procedures set forth in these rules. (C) Decision. The officer conducting the preliminary review shall determine whether there is probable cause to believe that the probationer violated the conditions of the probationer’s suspension. If the officer conducting the preliminary review determines that probable cause is lacking, the officer shall issue a written order directing that the probationer be released from confinement. If the officer determines that there is probable cause to believe that the probationer violated a condition of suspension, the officer shall set forth this determination in a written memorandum that details therein the evidence relied upon and reasons for making the decision. The officer shall forward the original memorandum or release order the probationer’s commander and forward a copy to the probationer and the confinement facility. (d) Vacation proceedings. in charge of the officer to (1) In general. The purpose of the vacation hearing is to determine whether there is probable cause to believe that the probationer violated a condition of the probationer’s suspension. (A) Sentence of general courts-martial and certain special courts-martial. In the case of vacation proceedings for a suspended sentence of any general court-martial or a suspended sentence of a special court-martial that adjudged either a bad-conduct discharge or confinement for more than six months, the officer having special court-martial jurisdiction over the probationer shall either personally hold the hearing or detail a judge advocate to preside at the hearing. If there is no officer having special court-martial jurisdiction over the probationer who is subordinate to the officer having general court-martial jurisdiction over the probationer, the officer exercising general court-martial jurisdiction over the probationer shall either personally hold a hearing under this subsection or detail a judge advocate to conduct the hearing. (B) Special court-martial wherein a bad-conduct discharge or confinement for more than six months was not adjudged. In the case of vacation proceedings for a sentence from a special court-martial that did not II-108 include a bad-conduct discharge or confinement for more than six months, the officer having special court- martial jurisdiction over the probationer shall either personally hold the hearing or detail a judge advocate to conduct the hearing. court-martial (C) Sentence of summary court-martial. In the case of vacation proceedings for a suspended sentence of a summary court-martial, the officer having summary the probationer shall either personally hold the hearing or detail a commissioned officer to conduct the hearing. (2) Notice to probationer. Before the hearing, the the the hearing shall cause officer conducting probationer to be notified in writing of: jurisdiction over (A) The time, place, and purpose of the hearing; (B) The right to be present at the hearing; (C) The alleged violation(s) of the conditions of suspension and the evidence expected to be relied on; (D) The right to be represented at the hearing by civilian counsel provided by the probationer or, upon request, by military counsel detailed for this purpose; and (E) The opportunity to be heard, to present witnesses who are reasonably available and other evidence, and the right to confront and cross-examine adverse witnesses unless the officer conducting the preliminary review determines that this would subject these witnesses to risk or harm. (3) Procedure. (A) Generally. The hearing shall begin with the hearing officer informing the probationer of the probationer’s rights. The Government will then present evidence. Upon the conclusion of the Government’s presentation of evidence, the probationer may present evidence. The probationer shall have full opportunity to present any matters in defense, extenuation, or mitigation. Both the Government and probationer shall be afforded an opportunity to cross-examine adverse witnesses. The hearing officer may also question witnesses called by the parties. (B) Rules of evidence. The Military Rules of Evidence applicable to vacation proceedings are the same as those set forth in subparagraph (c)(4)(B) of this rule. (C) Production of witnesses and other evidence. The procedure for the production of witnesses and other evidence shall follow that prescribed in R.C.M. 405(h), except that R.C.M. 405(h)(3)(B) shall not apply. The hearing officer shall only consider testimony and other evidence that is relevant to the limited purpose of the hearing. the right to reasonable, accurate, and timely notice of the vacation hearing. (D) Presentation of testimony. Witness testimony may be provided in person, by video teleconference, by telephone, or by similar means of remote testimony. All testimony shall be taken under oath, except that the probationer may make an unsworn statement. (E) Other evidence. If relevant to the limited purpose of the hearing, and not cumulative, a hearing officer may consider other evidence, in addition to or in lieu of witness testimony, including statements, tangible evidence, or reproductions thereof, offered by either side, that the hearing officer determines is reliable. This other evidence need not be sworn. (F) Protective order for release of privileged information. If the Government agrees to disclose to the probationer information to which the protections afforded by Mil. R. Evid. 505 or 506 may apply, the convening authority, or other person designated by regulation of the Secretary of the service concerned, may enter an appropriate protective order, in writing, to guard against the compromise of information disclosed to the probationer. The terms of any such protective order may include prohibiting the disclosure of the information except as authorized by the authority. (G) Presence of probationer. The taking of evidence shall not be prevented and the probationer shall be considered to have waived the right to be present whenever the probationer: (i) After being notified of the time and place of the proceeding is voluntarily absent; or (ii) After being warned by the hearing officer that disruptive conduct will cause removal from the proceeding, persists in conduct that is such as to justify exclusion from the proceeding. (H) Objections. Any objection alleging failure to comply with these rules shall be made to the convening authority via the hearing officer. The hearing officer shall include a record of all objections in the written recommendations to the convening authority. (I) Access by spectators. The procedures for access by spectators shall follow those prescribed in R.C.M. 405(j)(3). (J) Victims’ rights. Any victim of the underlying offense for which the suspended sentence, or any victim of the alleged offense that is the subject of the vacation hearing, has the probationer received (4) Record and recommendation. The officer conducting the hearing shall make a summarized record of the hearing. If the hearing is not personally conducted by the officer having the authority to take action under subsection (e) of this rule, the officer who conducted the hearing shall forward the record and that officer’s written recommendation concerning vacation to such authority. The record shall include the recommendation, the evidence relied upon, and the rationale supporting the recommendation. (5) Release from confinement. If the hearing is not personally conducted by the officer having the authority to take action under subsection (e) of this rule and the officer conducting the hearing finds there is not probable cause to believe that the probationer violated any condition of the suspension, the officer shall order the release of the probationer from any confinement ordered under subsection (c) of this rule, and forward the record and recommendation to the officer having the authority to take action under subsection (e) of this rule. (e) Action. (1) General courts-martial and certain special courts-martial. In a case of a suspended sentence from any general court-martial or a suspended sentence from a special court-martial that adjudged either a bad- conduct discharge or confinement for more than six months, unless the officer exercising general court- martial jurisdiction over the probationer personally conducted the hearing, the officer exercising general court-martial jurisdiction over the probationer shall review the record and the recommendation produced by the officer who conducted the hearing on the alleged violation of the conditions of suspension, decide whether the probationer violated a condition of suspension, and, if so, decide whether to vacate the suspended sentence. If the officer exercising general court-martial the suspended sentence, that officer shall prepare a written statement of the evidence relied on and the reasons for vacating the suspended sentence. jurisdiction decides to vacate (2) Special courts-martial wherein a bad-conduct discharge and confinement for more than six months was not adjudged. In a case of a suspended sentence from a special court-martial that did not include a bad- conduct discharge or confinement for more than six months, unless the officer having special court-martial jurisdiction over the probationer personally conducted II-109 the hearing, the officer having special court-martial jurisdiction over the probationer shall review the record and the recommendation produced by the officer who conducted the hearing, decide whether the probationer violated a condition of suspension, and, if so, decide whether to vacate the suspended sentence. If the officer exercising special court-martial jurisdiction decides to vacate the suspended sentence, that officer shall prepare a written statement of the evidence relied on and the reasons for vacating the suspended sentence. The authority holding the same or higher court-martial authority as the officer who originally suspended the probationer’s sentence may withhold the authority to take action under this paragraph to that officer. (3) Vacation of a suspended sentence from a summary court-martial. In a case of a suspended sentence from a summary court-martial, unless the officer having summary court-martial jurisdiction over the probationer personally conducted the hearing, the officer having summary court-martial jurisdiction over the probationer shall review the record and the recommendation produced by the officer who conducted the hearing, and decide whether the probationer violated a condition of suspension, and, if so, decide whether to vacate the suspended sentence. If the officer court-martial jurisdiction decides to vacate the suspended sentence, that officer shall prepare a written statement of the evidence relied on and the reasons for vacating the suspended sentence. The authority holding the same or higher court-martial authority as the officer who originally suspended the probationer’s sentence may withhold the authority to take action under this paragraph to that officer. exercising summary (4) Execution. Any unexecuted part of a suspended sentence ordered vacated under this subsection shall be executed.