JAG CENTRALThe world's first weblog devoted to military justice and military law issues.
Saturday, June 26, 2004
THURSDAY'S CAAF OPINION
QUESTION: When a servicemember is convicted pursuant to a guilty plea, sentenced to confinement, and has his adjudged forfeitures waived pursuant to a plea agreement and sent to his wife for six months, in clear violation of Army regulations (which states forfeitures can only be waived when confinement or discharge is waived as well), and DFAS doesn't pay up as a result, is the guilty plea provident? The unanimous opinion from the U.S. Court of Appeals for the Armed Forces: Maybe, Maybe Not. Yesterday, in U.S. v. Lundy, No. 03-0620, CAAF remanded the case to the Army Court of Criminal Appeals to determine if remedial action can cure the government's breach of the plea agreement, or if the plea must be thrown out.
This case is similar to U.S. v. Perron, 58 M.J. 78 (C.A.A.F. 2003) in that it also involved a plea agreement with waived forfeitures that were supposed to go to a spouse, but could not due to pay regulations. However, the outcomes were slightly different; in Perron, the appellant was unwilling to accept a later payment as specific performance to cure the breach, and the Perron court held an appellant can not be made to accept a curative, alternative action. Since none was offered in this case, CAAF decided it must be remanded for further action. Both the majority and the concurring opinion by Judge Crawford seem to intimate that specific performance may be enough in this case to cure the breach of the plea agreement.
This case is similar to U.S. v. Perron, 58 M.J. 78 (C.A.A.F. 2003) in that it also involved a plea agreement with waived forfeitures that were supposed to go to a spouse, but could not due to pay regulations. However, the outcomes were slightly different; in Perron, the appellant was unwilling to accept a later payment as specific performance to cure the breach, and the Perron court held an appellant can not be made to accept a curative, alternative action. Since none was offered in this case, CAAF decided it must be remanded for further action. Both the majority and the concurring opinion by Judge Crawford seem to intimate that specific performance may be enough in this case to cure the breach of the plea agreement.
