26-1062. Appeal by the state

A. In a trial by court-martial in which a military judge presides and in which a punitive discharge may be adjudged, the state may appeal an order or ruling of the military judge which terminates the proceedings with respect to a charge or specification or which excludes evidence that is substantial proof of a fact material in the proceeding. The state shall not appeal an order or ruling that is, or that amounts to, a finding of not guilty with respect to the charge or specification.

B. An appeal of an order or ruling shall not be taken unless the trial counsel provides the military judge with written notice of appeal from the order or ruling within seventy-two hours after 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 by trial counsel.

D. An appeal under this section shall be forwarded by a means prescribed under rules of the governor directly to the Arizona court of military appeals and, if practicable, has priority over all other proceedings before that court. In ruling on an appeal under this section, the Arizona court of military appeals may act only with respect to matters of law.

E. 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.