Commonwealth v. Doe (Lawyers Weekly No. 10-175-15)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-11861   COMMONWEALTH  vs.  JOHN DOE.[1] Hampshire.     September 9, 2015. – October 22, 2015. Present:  Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Sex Offender.  Global Positioning System Device.  Practice, Criminal, Probation, Admission to sufficient facts to warrant finding, Continuance without a finding.  Statute, Construction.      Complaint received and sworn to in the Eastern Hampshire Division of the District Court Department on February 1, 2013.   A motion to modify a condition of probation was heard by Christopher P. LoConto, J., and a question of law was reported by him to the Appeals Court.   The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.     Tracy A. Miner (Frederic G. Bartmon & Christina Lynn with her) for the defendant. Cynthia M. Von Flatern, Assistant District Attorney, for the Commonwealth. William C. Newman & K. Hayne Barnwell, for American Civil Liberties Union of Massachusetts, amicus curiae, submitted a brief. Ryan M. Schiff, Committee for Public Counsel Services, for Committee for Public Counsel Services, amicus curiae, submitted a brief.     GANTS, C.J.  This case is the latest in a string of cases calling on us to decide the reach of G. L. c. 265, § 47, which  provides in relevant part, “Any person who is placed on probation for any offense listed within the definition of ‘sex offense,’ . . . as defined in [G. L. c. 6, § 178C,] shall, as a requirement of any term of probation, wear a global positioning system device . . . at all times for the length of his probation for any such offense.”  Most recently, in Commonwealth v. Hanson H., 464 Mass. 807, 808 (2013), we determined that the Legislature did not intend this statute to apply to juveniles who were placed on probation after having been adjudicated delinquent.  Previously, in Commonwealth v. Raposo, 453 Mass. 739, 748 (2009), we concluded that § 47 does not apply to persons who are placed on pretrial probation.  In Raposo, we left “for a more appropriate case, and one in which the issue is briefed by the parties, whether [§ 47] applies to defendants whose cases are continued without a finding after a guilty plea or an admission to sufficient facts.”  Id. at 740 n.2.  This is that case.  We conclude that § 47 does not apply to cases that are continued without a finding, […]

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