Commonwealth v. Finase
Decision Date | 07 September 2001 |
Parties | COMMONWEALTH v. TIMOTHY FINASE. |
Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, SOSMAN, & CORDY, JJ.
William T. Harrington, Special Assistant District Attorney (Robert C. Cosgrove, Assistant District Attorney, with him) for the Commonwealth.
Edward J. Kelly (Lauren A. Kelly & Leo McAuliffe with him) for the defendant.
Toni G. Wolfman, Anthony Mirenda & Kristi G. Hatrick for The Domestic Violence Council, Inc., & others, amici curiae, submitted a brief.
Thomas F. Reilly, Attorney General, & Barbara F. Berenson, Assistant Attorney General, for Attorney General, amicus curiae, submitted a brief.
On June 18, 1999, on a complaint filed by Bridie O'Loughlin, the Wrentham Division of the District Court Department issued an ex parte abuse prevention order (order) against the defendant, Timothy Finase. The order provided in pertinent part:
After a hearing on July 1, 1999, attended by both O'Loughlin and the defendant, the order containing, inter alia, the above provision was extended to June 30, 2000. On July 10, 1999, O'Loughlin was present at a concert on Wrentham town common when she saw the defendant standing by the bandstand. Shortly thereafter, she again saw him; this time he was approximately three or four feet from her. He was alone, standing beside, but slightly behind, her current boy friend, and appeared to be talking with three of her boy friend's friends. (The friends later informed police that the defendant was not in fact talking to them.) The defendant remained there "looking about the area" for about ten to fifteen minutes. O'Loughlin reported this incident to the Wrentham police who arrested the defendant for violation of the order.
A complaint issued from the Wrentham District Court charging the defendant with violating a protective order issued pursuant to G. L. c. 209A, § 3. The defendant moved to dismiss the complaint. A hearing was held, during which the Commonwealth represented that the alleged violation concerned the "stay at least 100 yards [away]" provision of the order. The District Court judge ruled that the "stay away" provision of the order is not a statutory violation enumerated under G. L. c. 209A, § 7, and thus cannot be prosecuted under that section, but only under a common-law theory of criminal contempt. Accordingly, the judge dismissed the complaint without prejudice to prosecution of the defendant for criminal contempt. The Commonwealth filed a motion for reconsideration that was denied, and then a timely notice of appeal. We transferred the case here on our motion. We vacate the judge's order and remand the case to the District Court for further proceedings. The issue before us is whether a violation of the "stay away" provision of an abuse prevention order is a violation enumerated under G. L. c. 209A, § 7, and thus may be prosecuted under that section. In Commonwealth v. Gordon, 407 Mass. 340 (1990), we interpreted G. L. c. 209A, § 7, St. 1987, c. 213. The pertinent language of the statute, inserted by St. 1983, c. 678, § 5, at that time provided:
Thus, police service was required for any abuse prevention order that required the defendant not to abuse a family member or to vacate the complainant's household. A penalty was provided for violation of such order (i.e., an order not to abuse a family member or to vacate the household) and each such order was to contain the warning that violation of its terms constituted a criminal offense. The antecedents to the word "such" in each case were orders to refrain from abuse or to vacate the household. The statute's criminal sanctions were limited to violations of these two types of abuse prevention orders, and Commonwealth v. Gordon, supra,
so held.
However, the statute has been amended several times since 1987. The current version of G. L. c. 209A, § 7, as amended through St. 1996, c. 298, § 8 (in effect in 1999) provides in relevant part:
The scope of § 7 has thus been expanded; it now encompasses orders to have no contact with the plaintiff or the plaintiff's minor children ("no contact" orders) as well as orders to vacate and to refrain from abuse.1 "Each abuse prevention order" (i.e., orders to vacate, refrain from abuse, or to have no contact) is to state that violation of its terms is a crime (emphasis supplied). The next sentence provides criminal penalties for "[a]ny violation of such order ..." (emphasis supplied). This sentence must be read together with the reference in the preceding sentence to "[e]ach abuse prevention order issued," and with the prior reference to orders issued pursuant to ...
To continue reading
Request your trial-
Commonwealth v. Walters
...away during those hours and, therefore, violation of the order at those times was not a criminal offense. See Commonwealth v. Finase, 435 Mass. 310, 313–314, 757 N.E.2d 721 (2001) ( G.L. c. 209A, § 7, criminalizes only three kinds of violations of an order: failures to vacate, to refrain fr......
-
Mackey v. Town of Tewksbury, CIVIL ACTION NO. 15-12173-MBB
...violation of G.L. c. 209A") (citing Commonwealth v. Gordon, 407 Mass. 340, 553 N.E.2d 915, 918 (1990) ); accord Commonwealth v. Finase, 435 Mass. 310, 757 N.E.2d 721, 724 (2001) (" § 7 limits to the offenses enumerated therein those actions that will constitute a criminal violation of G.L. ......
-
Commonwealth v. Medeiros
...individual. In each, at the least, the protected individual saw or was seen by the defendant. See, e.g., Commonwealth v. Finase, 435 Mass. 310, 311, 757 N.E.2d 721 (2001) (no contact provision violated when defendant was seen by protected individual at town concert, first near bandstand and......
-
Toldness v. Ryan
...orders to vacate, to refrain from abusing, or to have no contact under G.L. c. 209A are criminal violations. Commonwealth v. Finase , 435 Mass. 310, 757 N.E.2d 721, 723–24 (2001). In Commonwealth v. Mahar , the Supreme Judicial Court made clear that "[a] consensual entry ... does not always......