Commonwealth v. Baratieri (Lawyers Weekly No. 10-147-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-12065 COMMONWEALTH vs. GILMAR BARATIERI. September 12, 2016. Supreme Judicial Court, Superintendence of inferior courts. Bail. Surety. Queila Alcedina Lopes and Angelina Placido acted as sureties for the defendant, Gilmar A. Bartieri, in the District Court, and posted a total of $ 50,000 in bail on his behalf.[1] After Baratieri subsequently failed to appear for a hearing on March 30, 2015, a judge ordered the bail forfeited. Prior to that, the sureties had filed a motion for return of bail, on the basis that Baratieri could not appear for the hearing because he was in Federal custody, on an Immigration and Customs Enforcement detainer.[2] The motion was denied. The sureties then filed a petition pursuant to G. L. c. 211, § 3, in the county court, asking the court to order return of bail. A single justice denied the petition, and the sureties filed a notice of appeal. After their appeal was entered in this court, the sureties filed a brief.[3] Their brief contained no explanation of why the matter was suitable for consideration pursuant to G. L. c. 211, § 3. The Commonwealth, in turn, filed a document indicating that it did not intend to file a responsive brief because, it claimed, the sureties had failed to comply with S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001). The sureties have now filed a “petition” to appeal pursuant to rule 2:21. It is questionable whether the trial court ruling from which the sureties seek relief is “interlocutory,” for purposes of rule 2:21, and thus questionable whether the rule applies here. Regardless, it is evident that the sureties had an adequate alternative remedy. As the Commonwealth noted in its opposition to the sureties’ G. L. c. 211, § 3, petition, bail forfeiture issues are typically resolved through the normal appellate process. See Commonwealth v. Bastidas, 81 Mass. App. Ct. 1124 (2012) (memorandum and order pursuant to rule 1:28) (surety’s appeal from denial of motion to return bail); Commonwealth v. Gomez, 78 Mass. App. Ct. 569 (2011) (defendant’s appeal from bail forfeiture order). See also Commonwealth v. Bautista, 459 Mass. 306, 310 (2011) (surety appealed to Appeals Court from denial of motion to return bail; Supreme Judicial Court transferred appeal on its own motion). To the extent that the sureties have even addressed in their petition the issue of an adequate alternative […]