Mariano v. Judge of District Court of Central Berkshire

• Citation: 243 Mass. 90
• Court: United States State Supreme Judicial Court of Massachusetts
• Decision Date: 27 November 1922
• Parties: SANTO MARIANO v. JUDGE OF DISTRICT COURT OF CENTRAL BERKSHIRE & another.

243 Mass. 90

SANTO MARIANO v. JUDGE OF DISTRICT COURT OF CENTRAL BERKSHIRE & another.

Supreme Judicial Court of Massachusetts, Berkshire.

November 27, 1922

September 19, 1922.

Present: RUGG, C.

J., BRALEY, PIERCE & JENNEY, JJ.

Mandamus. District and Municipal Courts.

Practice, Criminal Appeal. Words, "Conviction.

"

A petition for a writ of mandamus ordering the judge and the clerk of a district court to allow and enter an appeal of the petitioner from a conviction will not be dismissed on the ground that the petitioner has served his sentence.

The imposition of a sentence after a finding or a plea of guilty in a district court constitutes a "conviction" as that word is used in G.L.c.

278, Section 18 giving a right of appeal to the Superior Court, and in G.L.c 279, Section 1, providing for a suspension of the execution of the sentenee and the placing of the defendant on probation.

The time for appeal from a conviction in a district court is immediately after the imposition of the sentence.

An appeal from a conviction in a district court, where execution of the sentence has been suspended under G.L.c. 291, Section 1, must be taken at the time when the sentence is imposed.

A defendant was convicted in a district court and sentenced to an imprisonment for less than six months and the execution of the sentence was suspended for a year and he was put on probation. At the time the sentenee was imposed, he was notified of his right to appeal and did not appeal. During the probationary year he was surrendered for violation of the terms of his probation, the suspension of sentence was revoked, the sentence was reduced at his request and compliance with it, as modified, was ordered. He then requested leave to appeal, which was refused. Held, that the defendant bad lost his right of appeal by not claiming it when the sentence originally was imposed.

PETITION, filed in the Supreme Judicial Court on March 25, 1922, for a writ of mandamus commanding the judge of the District Court for Central Berkshire and the clerk of that court to allow the petitioner to appeal from the sentence described in the opinion.

The defendants severally filed answers. The material facts alleged in the answers are described in the opinion. The case was beard by Carroll, J., who found the facts to be as alleged in the answers and denied the petition. The petitioner alleged exceptions.

P. J. Moore, for the petitioner.

C.

L. Hibbard, for the respondents, was in court but filed no brief and waived argument.

RUGG, C.J. This is a petition for a writ of mandamus to compel the judge and clerk of a district court to allow the petitioner to claim an appeal from a sentence imposed in that court to the Superior Court. The relevant facts upon which reliance now is placed are that on the third day of January, 1922, the petitioner was convicted in the district court of maintaining a liquor nuisance and sentence of imprisonment for less than six months was imposed, but the execution of the sentence was suspended by the court during the good behavior of the petitioner until the first day of January, 1923, and the petitioner placed on probation upon the usual terms. At the time of the imposition of this sentence, the petitioner was notified of his right to appeal but he did not then appeal. On the twenty-second day of March, 1922, the petitioner was again brought before the same district court charged with the commission of two new crimes and was found guilty. On the same day he was surrendered for violation of his probation on the sentence of January 3, 1922, the judge revoked the suspension of the sentence and the probation order, reduced the sentence at the request of the petitioner, and ordered the sentence to be complied with. Thereupon the petitioner requested leave to appeal from the sentence as modified which was denied and he was committed. The only question argued is whether he had a right to appeal on the twenty-second day of March, 1922, in the case on which he was sentenced first on January 3, 1922.

The petition will not be dismissed on the ground that the petitioner has served his sentence. Weiner v. Wentworth, 181 Mass. 15 . The case at bar is distinguishable in this particular from Cabis, petitioner, 240 Mass. 465 .

It is provided by G.L.c. 278, Section 18, that "Whoever is convicted of a crime before a district court or trial justice may appeal to the Superior Court, and at the time of conviction shall be notified of his right to take such appeal." The suspended sentence law is in G.L.c. 279, by Section 1 of which it is enacted that "When a person convicted before a district court is sentenced to imprisonment, the court may direct that the execution of the sentence be suspended, and that he be placed on probation for such time and on such terms and conditions as it shall fix." It is indubitable that the imposition of sentence after finding or plea of guilty constitutes "conviction" as that...