48-2918. (KCMJ Art. 62) Appeal by the state.
48-2918
48-2918. (KCMJ Art. 62) Appeal by the state.(a) (1) In a trial by court-martial in which a militaryjudge presides and in which a punitive discharge may be adjudged, theadjutant general may appeal an order or ruling of the military judge whichterminates the proceedings with respect to a charge or specification orwhich excludes evidence that is substantial proof of a fact material in theproceeding. However, the adjutant general may not appeal an order or rulingthat is, or that amounts to,a finding of not guilty with respect to the charge or specification.
(2) An appeal of an order or ruling may not be taken unless the trialcounsel provides the military judge with written notice of appeal from theorder or ruling within 72 hours of the order or ruling. Such notice shallinclude a certification by the trial counsel that the appeal is not takenfor the purpose of delay and, if the order or ruling appealed is one whichexcludes evidence, that the evidence excluded is substantial proof of afact material in the proceeding.
(3) An appeal under this section shall be diligently prosecuted by appellate counsel.
(b) An appeal under this section shall be forwarded by a meansprescribed under regulations of the governor for the adjutant generaldirectly to the court of military review and shall, whenever practicable,have priority over all other proceedings before that court. In ruling on anappeal under this section, the court of military review may act only withrespect to matters of law, notwithstanding subsection (c) of K.S.A.48-2922.
(c) Any period of delay resulting from an appeal under this sectionshall be excluded in deciding any issue regarding denial of a speedy trialunless an appropriate authority determines that the appeal was filed solelyfor the purpose of delay with the knowledge that it was totally frivolousand without merit.
History: L. 1988, ch. 191, § 40; July 1.