Com. v. Resende

• Decision Date: 02 June 1998
• Citation: 427 Mass. 1005,694 N.E.2d 843
• Parties: COMMONWEALTH v. Avino RESENDE (and three companion cases 1 ).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 843

694 N.E.2d 843

427 Mass. 1005

COMMONWEALTH v. Avino RESENDE (and three companion cases ¹).

Supreme Judicial Court of Massachusetts.

June 2, 1998.

David R. Marks, Assistant Attorney General (Brian P. Burke, Assistant Attorney General, with him), for the Commonwealth.

Michael A. Bergeron, Brockton, for Jose M. Araujo.

RESCRIPT.

The defendants each were charged with one count of motor vehicle insurance fraud in violation of G.L. c. 266 § 111B, and one count of attempting to commit the crime of larceny over $250, in violation of G.L. c. 266, §§ 30 & 6L. Both defendants waived their right to a trial by jury and the cases proceeded to trial before a judge in the Brockton Division of the District Court Department. On the first day of trial, the Commonwealth called two witnesses, one of whom did not conclude his testimony, and the case was continued to the following day. On the second day of the trial, the parties met first in the judge's chambers to discuss a disposition of the cases. The lobby conference was not recorded. Thereafter, at a hearing that morning, the defendants recommended a continuance without a finding for six months on both counts, respectively, and the Commonwealth recommended guilty findings, with one year's probation and 250 hours of community services, together with $2,000 to be paid by each defendant in restitution. The judge imposed a continuance without a finding for six months on each charge, with a $35 victim-witness fee and $100 in court costs to be paid by each defendant. On the record before us, the prosecutor did not challenge the judge's authority to enter a continuance without a finding.

The Commonwealth filed a timely appeal from the judge's disposition of a continuance without a finding, and, on May 28, 1997, the case was entered in the Appeals Court. The Commonwealth did not file a motion to stay the sentence pending appeal, and on August 26, 1997, the District Court judge dismissed the complaints. The Commonwealth did not file a notice of appeal from the dismissals within thirty days as required by Mass. R.A.P. 4(b), as amended, 378 Mass. 928 (1979). On October 14, 1997, the Commonwealth filed a motion in the District Court seeking permission to file late notices of appeal. The motions were denied.

On October 10, 1997, the Commonwealth filed an application for direct appellate review in this court seeking review of the judge's disposition of the charges and challenging the authority of the District Court judge to enter a continuance without a finding after the trial had commenced. On November 12, 1997, we granted the Commonwealth's application. On November 20, and December 9, 1997, the defendants filed motions to dismiss the Commonwealth's appeal on the grounds that the case was moot, and that the Commonwealth's brief did not comply with the rules of appellate procedure. Specifically, the defendants argued that the Commonwealth had not objected below to the judge's authority to enter a continuance without a finding, and that the Commonwealth had failed to provide a citation to the record for its claim that it had objected to the disposition below, as required by Mass. R.A.P. 16(e), as amended, 378 Mass. 940 (1979). The motions to dismiss were referred to a single justice of this court, who recommended that they be denied. We adopted the recommendation of the single justice. On April 9, 1998, the same day that oral argument was heard in the appeal, the Commonwealth filed a motion to...