Posts tagged "1003915"

Soucy v. Commonwealth (Lawyers Weekly No. 10-039-15)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   SJC-11779   DAVID SOUCY  vs.  COMMONWEALTH. March 6, 2015.       Supreme Judicial Court, Superintendence of inferior courts.       David Soucy appeals from a judgment of a single justice of this court denying his petition for relief under G. L. c. 211, § 3.  We affirm.   Soucy was indicted for trafficking in a class B substance in violation of G. L. c. 94C, § 32E.  In moving to dismiss the indictments, he argued that because the charges concerned pharmaceutical drugs (oxycodone tablets), the weight requirements under § 32E should be measured by the weight of the controlled substance (oxycodone) contained in the tablets, not by the tablets’ total weight, and that there was an insufficient amount of the controlled substance in the tablets to meet the statutory weight requirements.  His motion was denied by a judge in the Superior Court.  His G. L. c. 211, § 3, petition in the county court challenged that interlocutory ruling.  The single justice denied relief without a hearing.   Under S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001), Soucy is required to “set forth the reasons why review of the trial court decision cannot adequately be obtained on appeal from any final adverse judgment in the trial court or by other available means.”  He has not done so.  If and when he is convicted on one or more of the indictments, any challenge to the weight requirements under § 32E or to the sufficiency of the evidence in support of those requirements can adequately be reviewed in the normal appellate process.   “The denial of a motion to dismiss in a criminal case is not appealable until after trial, and we have indicated many times that G. L. c. 211, § 3, may not be used to circumvent that rule.  Unless a single justice decides the matter on the merits or reserves and reports it to the full court, neither of which occurred here, a defendant cannot receive review under G. L. c. 211, § 3, from the denial of his motion to dismiss.”  Jackson v. Commonwealth, 437 Mass. 1008, 1009 (2002), and cases cited.  A very limited exception exists where, before a trial or a retrial, a defendant raises a double jeopardy claim of substantial merit.  Id.  See Neverson v. Commonwealth, 406 Mass. 174, 175-176 (1989).  But we have consistently rejected attempts to obtain interlocutory review as a matter of right under G. L. c. 211, § 3, […]

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Posted by Massachusetts Legal Resources - March 6, 2015 at 9:38 pm

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