KRS 35.328: Appeal by the state.

(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 o f 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 co unsel 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.