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Tim Bilecki

Pre-Trial Restraint

In UNITED STATES v. ZARBATANY, ACM 37448 (A.F.C.C.A. 2010) Zarbatany received 119 days for PTC credit plus an additional 476 days for unusually harsh PTC conditions. With adjudged confinement of only six months, Zarbatany was released at the conclusion of the trial. At action, the convening authority, properly referencing the credit, disapproved the adjudged forfeitures, but approved the punitive discharge and reduction in grade. The issue before the AFCCA was whether the punitive discharge should be disapproved to provide meaningful relief because the pretrial confinement credit exceeded the adjudged confinement to which the credit applied? The court held in the negative. If the credit exceeds the adjudged confinement, the credit will be applied to: (1) hard labor without confinement, (2) restriction, (3) fine, and (4) forfeiture, in that order, but will not be applied against “any other form of punishment.” R.C.M. 305(k).

In UNITED STATES v. GARDNER, 2010 WL 2990756 (N.M.CT.CRIM.APP.) Gardner was placed on pretrial restriction from 19 February to 15 May 2009, when he broke restriction and was placed in PTC. He remained there until 19 June 2009 when he was tried and convicted of multiple assaults. During sentencing, the DC argued the 35-day PTC term should be applied toward any adjudged sentence of confinement. The military judge denied the request, ruling that the PTC stemmed from charges of breaking restriction, and that credit should be applied toward a sentence of those charges. This issue before the NMCCA was knowing there remained unaccounted for PTC credit, should the judge have applied it to the case at bar as opposed to waiting for a later case to absorb the detention credit? The court ruled in the affirmative. The accused is entitled to receive credit for the 35 days he was confined prior to trial that were never applied toward his sentence. The military judge speculates “at his peril” whether additional proceedings will cover the PTC credit. In so doing, the military judge erred.

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