415 Mass. 112 (1993), Commonwealth v. Amirault

Citation:415 Mass. 112, 612 N.E.2d 631
Party Name:COMMONWEALTH v. Violet AMIRAULT & another. [ 1]
Case Date:May 04, 1993
Court:Supreme Judicial Court of Massachusetts
 
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Page 112

415 Mass. 112 (1993)

612 N.E.2d 631

COMMONWEALTH

v.

Violet AMIRAULT & another. 1

Supreme Judicial Court of Massachusetts, Middlesex.

May 4, 1993

Argued Dec. 10, 1992.

Patricia M. Darrigo, Asst. Dist. Atty., for Com.

Juliane Balliro, Boston (Joseph J. Balliro with her), for defendants.

Before LIACOS, C.J., and ABRAMS, LYNCH, O'CONNOR and GREANEY, JJ.

ABRAMS, Justice.

The Commonwealth appeals from a judge's allowance of the defendants' motions to revise or revoke their sentences. On July 15, 1987, the judge sentenced each defendant to concurrent terms on multiple convictions of indecent

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assault and battery on a child and rape of a child. 2 On August 12, 1987, the defendants each filed a motion to revise or revoke the sentence pursuant to Mass.R.Crim.P. 29, 378 Mass. 899 (1979).

On June 24, 1992, the defendants requested that their rule 29 motions be heard. On October 1, 1992, the trial judge held a hearing and allowed the defendants' motions. The judge revised their sentences to 64 months with the remainder suspended for seven years under the supervision of the probation department. The Appeals Court stayed the orders pending appeal. We allowed the Commonwealth's application for direct appellate review. We vacate the judge's orders, and order the original sentences be reinstated.

The Commonwealth's right to appeal. The defendants argue that the Commonwealth has no right to appeal the allowance of a motion brought pursuant to rule 29. Rule 29(a) states: "The trial judge upon his own motion or the written motion of a defendant filed within sixty days after the imposition of a sentence, within sixty days after receipt by the trial court of a rescript issued upon affirmance of the judgment or dismissal of the appeal, or within sixty days after entry of any order or judgment of an appellate court denying review of, or having the effect of upholding, [612 N.E.2d 632] a judgment of conviction, may upon such terms and conditions as he shall order, revise or revoke such sentence if it appears that justice may not have been done." The defendants suggest that the omission of a specific right to appeal from the language of G.L. c. 278, § 28E (1990 ed.), indicates a legislative intention to preclude the Commonwealth from appealing a judge's order on a motion to revise or revoke. In addition, the defendants claim that the Commonwealth may not appeal under G.L. c. 278, § 28E (1990 ed.), which

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states: "An appeal may be taken by and on behalf of the commonwealth by the attorney general or a district attorney from the superior court to the supreme judicial court in all criminal cases from a decision, order or judgment of the court (1) allowing a motion to dismiss an indictment or complaint, or (2) allowing a motion for appropriate relief under the Massachusetts Rules of Criminal Procedure." The defendants argue that motions under rule 29 are not motions for appropriate relief. We reject that argument.

In Commonwealth v. Therrien, 383 Mass. 529, 420 N.E.2d 897 (1981), the Commonwealth sought to challenge a judge's order granting a defendant's motion for a finding of not guilty, pursuant to Mass.R.Crim.P. 25(b)(1). The Commonwealth both appealed the judge's order and brought a complaint for relief under G.L. c. 211, § 3. We dismissed the complaint under G.L. c. 211, § 3, because we held that G.L. c. 278, § 28E, gave the Commonwealth the right to appeal from the allowance of Mass.R.Crim.P. 25(b) motion. Id. at 534, 420 N.E.2d 897. We noted that the reference in G.L. c. 278, § 28E, "to a motion for appropriate relief must be read more broadly than to refer only to pretrial motions." Id. at 535, 420 N.E.2d 897. We determined that, in common parlance, motions under rule 30, requesting postconviction relief, were motions for appropriate relief under G.L. c. 278, § 28E, and that, therefore, a motion for a required finding of not guilty under rule 25 also would be such a motion. 3 Cf. Commonwealth v. Yelle, 390 Mass. 678, 684-685, 459 N.E.2d 461 (1984) (Commonwealth has no right to an interlocutory appeal from the allowance of a motion to admit evidence).

Then, in Commonwealth v. Layne, 386 Mass. 291, 435 N.E.2d 356 (1982), we allowed the Commonwealth to appeal a judge's revision

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or revocation of sentence, although we did not discuss the statutory authority for such an appeal. We now hold that the allowance of a defendant's rule 29 motion to revise or revoke his or her sentence is a "motion for appropriate relief under the Massachusetts Rules of Criminal Procedure." Consequently, G.L. c. 278, § 28E, allowing the Commonwealth to appeal "a decision, order or judgment of the court ... (2) allowing a motion for appropriate relief under the Massachusetts Rules of Criminal Procedure" is applicable. 4 Therefore, the Commonwealth has the right to appeal the judge's allowance of the rule 29 motions. 5

The merits. On May 6, 1992, LeFave had her first hearing before a parole board panel. Her request for parole was denied unanimously. Her appeal to the panel was denied on June 16, 1992, and LeFave failed to pursue any further administrative remedies. [612 N.E.2d 633] On June 4, 1992, Amirault had...

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