Posts tagged "Selavka"

Commonwealth v. Selavka (Lawyers Weekly No. 10-150-14)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-11461   COMMONWEALTH  vs.  EDGAR L. SELAVKA. Hampshire.     February 4, 2014. – August 25, 2014.   Present:  Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ.[1]     Sex Offender.  Global Positioning System Device.  Practice, Criminal, Sentence, Probation, Double jeopardy, Duplicative punishment.     Indictments found and returned in the Superior Court Department on February 13, 2007.   A motion to vacate a condition of probation, filed on November 19, 2012, was heard by Mary-Lou Rup, J.   The Supreme Judicial Court granted an application for direct appellate review.     Kathryn Hayne Barnwell (Bonnie G. Allen with her) for the defendant. Steven Greenbaum, Assistant District Attorney, for the Commonwealth. William C. Newman & Matthew R. Segal, for American Civil Liberties Union of Massachusetts, amicus curiae, submitted a brief.     LENK, J.  Fifteen months after child pornography was discovered on his computer, the defendant pleaded guilty to eleven counts of possessing child pornography in violation of G. L. c. 272, § 29C.  In addition to a period of incarceration, the defendant was sentenced to a term of probation.  Notwithstanding the provisions of G. L. c. 265, § 47, requiring that defendants convicted of certain enumerated sex offenses, including possession of child pornography, be subject to global positioning system (GPS) monitoring as a condition of any term of probation, such monitoring was not imposed as part of the defendant’s sentence.  Almost one year later, the Commonwealth sought correction before the sentencing judge of what it termed an illegal sentence by the addition of GPS monitoring as a condition of the defendant’s probation.  After a hearing, the Commonwealth’s motion was allowed and GPS monitoring was ordered for the duration of the defendant’s probationary period. The defendant now appeals from the denial of his subsequent motion brought pursuant to Mass. R. Crim. P. 30 (a), as appearing in 435 Mass. 1501 (2001) (rule 30[a]), to vacate the addition of GPS monitoring to the conditions of his probation, contending both that the judge lacked authority to modify his sentence and that the delayed imposition of GPS monitoring violated principles of double jeopardy.  As we determined in Commonwealth v. Guzman, ante     (2014), G. L. c. 265, § 47, affords a sentencing judge no discretion as to the imposition of GPS monitoring for probationers convicted of the specified predicate offenses.  Accordingly, the defendant’s initial sentence was illegal insofar as it did not include GPS monitoring as […]

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Posted by Massachusetts Legal Resources - August 25, 2014 at 8:24 pm

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