State may appeal certain rulings

(a)(1) In a trial by court-martial in which a punitive discharge may be adjudged, the state may appeal the following, other than a finding of not guilty with respect to the charge or specification by the members of the court-martial or by a judge in a bench trial so long as it is not made in reconsideration: (A) An order or ruling of the military judge which terminates the proceedings with respect to a charge or specification; 477 38-2-1062 MILITARY, EMERG. & VET. AFFAIRS 38-2-1063 (B) An order or ruling which excludes evidence that is substantial proof of a fact material in the proceeding; (C) An order or ruling which directs the disclosure of classified information; (D) An order or ruling which imposes sanctions for nondisclosure of classified information; (E) A refusal of the military judge to issue a protective order sought by the state to prevent the disclosure of classified information; and (F) A refusal by the military judge to enforce an order described in subparagraph (E) of this paragraph that has previously been issued by appropriate authority. (2) An appeal of an order or ruling may not be taken unless the trial counsel provides the military judge with written notice of appeal from the order or ruling within 72 hours of the order or ruling. Such notice shall include a certification by the trial counsel that the appeal is not taken for the purpose of delay and, if the order or ruling appealed is one which excludes evidence, that the evidence excluded is substantial proof of a fact material in the proceeding. (3) An appeal under this Code section shall be diligently prosecuted as provided by law. (b) An appeal under this Code section shall be forwarded to the court prescribed in Code Section 38-2-1067. In ruling on an appeal under this Code section, such court may act only with respect to matters of law. (c) Any period of delay resulting from an appeal under this Code section shall be excluded in deciding any issue regarding denial of a speedy trial unless an appropriate authority determines that the appeal was filed solely for the purpose of delay with the knowledge that it was totally frivolous and without merit. History. — Code 1981, § 38-2-1062, enacted by Ga. L. 2015, p. 753, § 1/HB 98. 38-2-1063. Rehearings; grounds; members of court; effect on sentence. Each rehearing under this article shall take place before a court-martial composed of members who were not members of the court-martial which first heard the case. Upon a rehearing, the accused may not be tried for any offense of which the accused was found not guilty by the first court-martial, and no sentence in excess of or more severe than the original sentence may be approved, unless the sentence is based upon a finding of guilty of an offense not considered upon the 478 38-2-1064 merits in the original proceedings or unless the sentence prescribed for the offense is mandatory. If the sentence approved after the first court-martial was in accordance with a pretrial agreement and the accused at the rehearing changes a plea with respect to the charges or specifications upon which the pretrial agreement was based, or otherwise does not comply with the pretrial agreement, the approved sentence as to those charges or specifications may include any punishment not in excess of that lawfully adjudged at the first court-martial. History. — Code 1981, § 38-2-1063, enacted by Ga. L. 2015, p. 753, § 1/HB 98. 38-2-1064. Guilty findings reviewed by state judge advocate.