322.038 Article 38 — Duties of trial counsel and defense counsel.

(1) The trial counsel of a general or special court-martial shall be an attorney licensed to practice in this state and shall prosecute in the name of the state, and shall, under the direction of the court, prepare the record of the proceedings.

(2)

(a) The accused has the right to be represented in defense before a general or special court-martial or at an investigation under s. 322.032.

(b) The accused may be represented by civilian counsel at the provision and expense of the accused.

(c) The accused may be represented by any of the following:

1. Military counsel detailed under s. 322.027.

2. Military counsel of the accused's own selection if that counsel is reasonably available as determined under par. (g).

(d) If the accused is represented by civilian counsel, military counsel detailed or selected under par. (c) shall act as associate counsel unless excused by the military judge at the request of the accused.

(e) Except as provided under par. (f), if the accused is represented by military counsel of his or her own selection under par. (c) 2., any military counsel detailed under par. (c) 1. shall be excused.

(f) The accused is not entitled to be represented by more than one military counsel. However, the person authorized under regulations prescribed under s. 322.027 to detail counsel, in that person's sole discretion may do any of the following:

1. Detail additional military counsel as assistant defense counsel.

2. If the accused is represented by military counsel of the accused's own selection under par. (c) 2., approve a request from the accused that military counsel detailed under par. (c) 1. act as associate defense counsel.

(g) The senior force judge advocate of the same force of which the accused is a member, shall determine whether the military counsel selected by an accused is reasonably available.

(3) In any court-martial proceeding resulting in a conviction, the defense counsel may do any of the following:

(a) Forward for attachment to the record of proceedings a brief of matters as counsel determines should be considered in behalf of the accused on review, including any objection to the contents of the record which counsel considers appropriate.

(b) Assist the accused in the submission of any matter under s. 322.060.

(c) Take other action authorized by this code.

History: 2007 a. 200; 2009 a. 179.