Com. v. Mandile

• Decision Date: 06 January 1983
• Citation: 443 N.E.2d 1333,15 Mass.App.Ct. 83
• Parties: COMMONWEALTH v. Anthony J. MANDILE.
• Court: Appeals Court of Massachusetts

Page 1333

443 N.E.2d 1333

15 Mass.App.Ct. 83

COMMONWEALTH v. Anthony J. MANDILE.

Appeals Court of Massachusetts,

Middlesex.

Argued Sept. 15, 1982.

Decided Jan. 6, 1983.

Elliot D. Lobel, Boston, for defendant.

Peter W. Agnes, Jr., Asst. Dist. Atty., for the Commonwealth.

Before BROWN, CUTTER and DREBEN, JJ.

DREBEN, Justice.

The question before us is whether the Commonwealth's motion for reconsideration of an order of a District Court judge dismissing a complaint with prejudice was timely when brought eighty-seven days after entry of that order. We hold that the motion was not timely, and that, in the absence of a showing by the Commonwealth of extenuating circumstances for the delay, it was error for the judge to reinstate the complaint.

The facts as to the pretrial proceedings are not in dispute. On August 4, 1980, a complaint was filed in the Framingham District Court charging the defendant with larceny of monies over one hundred dollars from his employer, the American Title Insurance Company. At a pretrial conference on September 19, 1980, trial was set for October 29, and the Commonwealth was ordered to complete discovery by October 8. Unhappily, other events took precedence--the assistant district attorney assigned to the case was shot and killed on October 2, 1980. Although a motion to dismiss because of the failure of the Commonwealth to comply with the discovery orders had been filed on October 10, upon being informed of the circumstances, the defendant agreed to postpone argument on the motion until October 29, 1980. On that date, after a hearing at which the Commonwealth argued that its neglect was excusable, the motion judge dismissed the complaint. He did not specify whether the dismissal was with prejudice.

After a new complaint was brought by the Commonwealth for the same charge in Concord District Court, the defendant filed a motion in Framingham District Court to "revoke, revise and correct" the previous order so that the dismissal would be with prejudice. The judge who had dismissed the complaint allowed the defendant's motion on December 19, 1980, after hearing argument. Four days later, at the defendant's request, the Concord complaint was also dismissed with prejudice. ¹ The appeal period under Mass.R.A.P. 4(b), 378 Mass. 929 (1979), see G.L. c. 278, § 28E, and the additional thirty-day period provided in Mass.R.A.P. 4(c), 378 Mass. 929 (1979) ("upon a showing of excusable neglect"), expired without an appeal by the Commonwealth from either the October 29 or the December 19 rulings.

On March 16, 1981, the Commonwealth filed a motion for reconsideration of the October 29, 1980, order as "supplemented by a clarifying order entered on December 19, 1980." The grounds for the motion were that "dismissal of a criminal charge for noncompliance with orders of discovery under Mass.R.Crim.P. 14(c)(1) is not permitted, or if it is permitted it was, in view of the extenuating circumstances set forth in the attached affidavit ... too drastic a sanction in this case." The affidavit accompanying the Commonwealth's motion contained no new facts and raised no arguments other than those which were before the judge on October 29, 1980, and again on December 19, 1980. ² The Commonwealth gave no reason why it had waited eighty-seven days to file its motion.

After hearing, the judge entered an order on April 30, 1981, stating that the order of December 19, 1980, would be vacated "upon the payment by the Commonwealth of $1500 in costs to the defendant on or before June 15, 1981." Following payment, the dismissal was vacated, the case proceeded to trial, and the defendant was found guilty as charged. ³

1. Reconsideration. We agree with the Commonwealth that the availability of appellate review does not preclude reconsideration by the judge of his prior order. "It was one of the earliest doctrines of the common law that the record of a court might be changed or amended at any time during the same term of the court in which a judgment was rendered." Fine v. Commonwealth, 312 Mass. 252, 255, 44 N.E.2d 659 (1942). See District Attorney for the No. Dist. v. Superior Court, 342 Mass. 119, 122-123, 172 N.E.2d 245 (1961). This was true in criminal as well as in civil proceedings. Commonwealth v. Weymouth, 2 Allen (84 Mass.) 144, 146-147 (1861). United States v. Benz, 282 U.S. 304, 307-308, 51 S.Ct. 113, 114, 75 L.Ed. 354 (1931). Although the Massachusetts Rules of Criminal Procedure do not contain an express provision permitting rehearing, no persuasive consideration of policy suggests that a judge should be unable to employ this well established procedural device.

To the contrary, Mass.R.Crim.P. 2(a), 378 Mass. 844 (1979), provides that the rules are to be construed "to secure simplicity in procedure fairness in administration, and the elimination of expense and delay." As stated in United States v. Healy, 376 U.S. 75, 80, 84 S.Ct. 553, 556, 11 L.Ed.2d 527 (1964), "to deprive the Government of the opportunity to petition a lower court for the correction of errors might, in some circumstances, actually prolong the process of litigation--since plenary consideration of a question of law here ordinarily consumes more time than disposition of a petition for rehearing--and could, in some cases, impose an added and unnecessary burden of adjudication" upon the appellate courts. See also United States v. Dieter, 429 U.S. 6, 8, 97 S.Ct. 18, 19, 50 L.Ed.2d 8 (1976), pointing out the "wisdom of giving district courts the opportunity promptly to correct their own alleged errors." While the absence of a right to appeal may be a compelling reason to allow reconsideration of an order dismissing a criminal complaint, see Rosenberg v. Commonwealth, 372 Mass. 59, 61-63, 360 N.E.2d 333 (1977), it is not, as indicated in Healy and Dieter, the only reason. Accordingly, we treat a timely request for reconsideration as an appropriate procedure without regard to whether appellate review is available. ⁴

2. Timeliness of request. As the Massachusetts Rules of Criminal Procedure do not expressly permit reconsideration, ⁵ no provision specifies the time period within which such a motion must be made. At common law such requests were limited by the duration of the term of court. Commonwealth v. Weymouth, 2 Allen (84 Mass.) at 145. After terms were abolished by St.1897, c. 490, the period of the "sitting" established the time limits during which a court could change its judgments. Commonwealth v. Soderquest, 183 Mass. 199, 200, 66 N.E. 801 (1903). See District Attorney for the No. Dist. v. Superior Court, 342 Mass. at 122, 128, 172 N.E.2d 245. Although the word "sitting" may still be found in our statutes with reference to sessions of court, e.g., G.L. c. 213, § 6; G.L. c. 218, § 38, and although the rule limiting a judge's action to term time has not been expressly repealed by our rules as in the Federal system, see former Fed.R.Crim.P. 45(c) and 6(c) (rescinded, effective July 1, 1966), and Advisory Committee Report, 5 F.R.D. 483, 486-487 (1946), we consider that the time of "sitting" no longer has any relevance in setting time limits for the powers of a court over its own judgments.

As we have not been referred to, or found, any case after the adoption of the Massachusetts Rules of Criminal Procedure which sets time limits for motions for reconsideration, we must look to other sources for guidance. The Commonwealth urges that we apply by analogy Mass.R.Civ.P. 60(b), 365 Mass. 828 (1974), which it claims "allows such motions to be filed within a 'reasonable time'." The construction given that rule and "the parallel Federal rule," see Feltch v. General Rental Co., 383 Mass. 603, ---, Mass.Adv.Sh. (1981) 1189, 1199, 421 N.E.2d 67 however, does not provide authority for allowing relief from judicial error ⁶ eighty-seven days after judgment, a period long after expiration of the time for appeal.

Recent Massachusetts cases indicate that definite and short time limits must be satisfied. In Locke v. Slater, 387 Mass. 682, 686, 442 N.E.2d 732 (1982), the court held untimely a motion for reconsideration not filed within the ten-day period required by cognate Dist/Mun.R.Civ.P. 59(e) (1975), at least for purposes of tolling the time period for preserving the right to appeal under Dist/Mun.R.Civ.P. 64(c)(1)(i & ii) (1975). See also Worsnop v. Texaco, Inc., 386 Mass. 1005, 1006, 436 N.E.2d 1227 (1982), where the court noted that the time limits for appeal, Mass.R.A.P. 4(a), 378 Mass. 928 (1979), and amendments of judgment, Mass.R.Civ.P. 59(e), 365 Mass. 827 (1974), applicable to a reconsideration of a ruling of law, do not apply to the action of a clerk in adding interest to a judgment. This court in Charles Choate Memorial Hosp. v. Commissioner of Pub. Welfare, 13 Mass.App. 1080, 435 N.E.2d 653 (1982), strongly suggested that a motion under rule 60(b)(1) to correct an error of law is not available after the appeal period has run and held that "in all but exceptional circumstances, the failure to prosecute an appeal from the original judgment will bar relief" under rule 60(b)(6). Id. at 1081, 435 N.E.2d 653 (omitting citations to quoted material).

Although the precise confines are not clear, the Federal civil cases also appear to impose relatively strict time limits on motions to reconsider errors of law. The determination of what is a reasonable period for such motions is usually linked in some manner to the time allowed for appeal. ⁷ See e.g., Schildhaus v. Moe, 335 F.2d 529, 531 (2d Cir.1964); In Re Texlon Corp., 596 F.2d 1092, 1100 (2d Cir.1979); Sleek v. J.C. Penney Co., 292 F.2d 256, 257 (3rd Cir.1961); Meadows v. Cohen, 409 F.2d 750, 752 n. 4 (5th Cir.1969); Gila River Ranch, Inc. v. United States, 368 F.2d 354, 357 (9th Cir.1966); Parks v. U.S. Life & Credit Corp., 677 F.2d 838, 840 (11th Cir.1982); D.C. Federation of Civic Associations v. Volpe, 520 F.2d 451, 453 (D.C.Cir.1975). Compare Lairsey v. Advance Abrasives Co., ...