Kentucky Statutes 35.328 – Appeal by the state
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(1) (a) 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:
1. An order or ruling of the military judge which terminates the proceedings with respect to the charge or specification;
2. An order or ruling which excludes evidence that is substantial proof of a fact material in the proceeding;
3. An order or ruling which directs the disclosure of classified information;
4. An order or ruling which imposes sanctions for nondisclosure of classified information;
5. A refusal of the military judge to issue a protective order sought by the state to prevent the disclosure of classified information; and
6. A refusal by the military judge to enforce an order described in subparagraph 5. of this paragraph that has previously been issued by the appropriate authority.
(b) 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 seventy-two (72) hours of the order or ruling. The 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.
(c) An appeal under this section shall be diligently prosecuted as provided by law. (2) An appeal under this section shall be forwarded to the court prescribed in KRS
35.333. In ruling on an appeal under this section, that court may act only with
respect to matters of law.
(3) Any period of delay resulting from an appeal under this 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.
Effective: June 25, 2013
History: Created 2013 Ky. Acts ch. 32, sec. 67, effective June 25, 2013.
1. An order or ruling of the military judge which terminates the proceedings with respect to the charge or specification;
Terms Used In Kentucky Statutes 35.328
- Appeal: A request made after a trial, asking another court (usually the court of appeals) to decide whether the trial was conducted properly. To make such a request is "to appeal" or "to take an appeal." One who appeals is called the appellant.
- Bench trial: Trial without a jury in which a judge decides the facts.
- Classified information: means :
(a) Any information or material that has been determined by an official of the United States or any state pursuant to law, an executive order, or regulation to require protection against unauthorized disclosure for reasons of national or state security. See Kentucky Statutes 35.010 - Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Military: refers to any or all of the Armed Forces. See Kentucky Statutes 35.010
- Military judge: means an official of a general and special court-martial detailed in accordance with KRS §. See Kentucky Statutes 35.010
- State: when applied to a part of the United States, includes territories, outlying possessions, and the District of Columbia. See Kentucky Statutes 446.010
- Trial: A hearing that takes place when the defendant pleads "not guilty" and witnesses are required to come to court to give evidence.
2. An order or ruling which excludes evidence that is substantial proof of a fact material in the proceeding;
3. An order or ruling which directs the disclosure of classified information;
4. An order or ruling which imposes sanctions for nondisclosure of classified information;
5. A refusal of the military judge to issue a protective order sought by the state to prevent the disclosure of classified information; and
6. A refusal by the military judge to enforce an order described in subparagraph 5. of this paragraph that has previously been issued by the appropriate authority.
(b) 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 seventy-two (72) hours of the order or ruling. The 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.
(c) An appeal under this section shall be diligently prosecuted as provided by law. (2) An appeal under this section shall be forwarded to the court prescribed in KRS
35.333. In ruling on an appeal under this section, that court may act only with
respect to matters of law.
(3) Any period of delay resulting from an appeal under this 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.
Effective: June 25, 2013
History: Created 2013 Ky. Acts ch. 32, sec. 67, effective June 25, 2013.