Posts tagged "1117415"

Commonwealth v. Everett (Lawyers Weekly No. 11-174-15)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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;   14-P-1761                                       Appeals Court   COMMONWEALTH  vs.  JOSEPH EVERETT. No. 14-P-1761.     November 3, 2015. Constitutional Law, Separation of powers.  Executive.  Boston Municipal Court.  Practice, Criminal, Dismissal, Complaint.      The Commonwealth appeals from an order dismissing -– over  objection — a legally valid criminal complaint that charged the defendant with operating a motor vehicle after his license had been revoked, subsequent offense, G. L. c. 90, § 23.[1]  The Commonwealth contends, and we agree, that here the judge, sitting in the Boston Municipal Court, lacked the authority to dismiss the complaint.  For his part, the defendant asserts the judge erred only in failing to hold a hearing pursuant to Commonwealth v. Brandano, 359 Mass. 332, 337 (1971), prior to dismissing the matter.  He requests a remand for a Brandano-type hearing in the interest of justice.[2]  Because the Legislature replaced the Brandano procedure with a statutory alternative when it rewrote G. L. c. 278, § 18,[3] for cases arising in the Boston Municipal, District, and Juvenile Court departments, see Commonwealth v. Powell, 453 Mass. 320, 324 (2009), we reject this request and reverse.   “[A] judge is not precluded from dismissing [a complaint] that [is] legally invalid.”  Commonwealth v. Cheney, 440 Mass. 568, 575 n.12 (2003).  A complaint may be found invalid for a variety of reasons including, for example, that it was issued without probable cause to believe a crime was committed, see Commonwealth v. McCarthy, 385 Mass. 160, 163 (1982), in violation of the double jeopardy clause, or where the evidence to be presented at trial is insufficient to support a conviction.  See Commonwealth v. Gordon, 410 Mass. 498, 502 (1991).  See also Commonwealth v. Manning, 75 Mass. App. Ct. 829, 832 (2009).  However, “the judiciary does not have the power to dismiss an otherwise legally adequate complaint or indictment prior to verdict, finding, or plea, over the objection of the prosecutor.”  Id. at 831-832.  See Commonwealth v. Tim T., 437 Mass. 592, 594-597 (2002); Commonwealth v. Cheney, supra at 574-575.   The dismissal here did not result from a legal defect in the complaint.  Rather, the judge essentially articulated his view that the prosecution of this defendant would not be desirable, where the defendant had taken the steps necessary to get his license reinstated and was in need of a license to obtain employment.[4]  We do not fault the judge for calling the matter to the […]


Posted by Massachusetts Legal Resources - November 3, 2015 at 4:47 pm

Categories: News   Tags: , , , ,