24 Mass. App. Ct. 447 | Mass. App. Ct. | 1987
On June 12,1986, the defendant appeared in the first tier of the District Court system and admitted to sufficient facts to warrant findings of guilty on seven charges arising out of two separate incidents involving his unlawful taking and operation of motor vehicles. See Mass.R.Crim.P. 12(a)(3), 378 Mass. 866 (1979). The defendant was found guilty of all the charges. On his convictions of larceny of a motor vehicle and leaving the scene after causing property damage (two counts), the defendant was sentenced to concurrent terms of two years’ imprisonment in a house of correction,
The defendant subsequently moved, pursuant to Mass.R. Crim.P. 30, 378 Mass. 900(1979), “for post-conviction relief.” The motion relied upon G. L. c. 218, § 31, as amended by St. 1978, c. 478, § 190, which reads as follows:
“No order shall be made for the commitment of a person to a jail or house of correction upon a sentence of more than six months, imposed by a district court, until at least one day after the imposition of such sentence. Before such order is made, he shall be notified of his right of appeal to a jury session of the district courts, and he may exercise such right, as provided by law, until such order is made. This section shall not apply to sentences the execution of which is suspended.”1
In view of § 31, the defendant asserted that the mittimus committing him on his sentences should not have been issued until the day following his admissions (that is on June 13), and that by its early issuance he had been deprived of his right to appeal.
The judge who found the defendant guilty and imposed the sentences held a hearing on the motion. Following the hearing, she entered a written memorandum containing the following rulings:
“This being an illegally imposed sentence, in that the procedural requirements of c. 218, § 31, were not met, [defendant’s motion is granted. He is notified of his right to appeal the findings of guilty and sentences against him and is returned to the Springfield District Court to be so notified and for a hearing on bail.”
The defendant subsequently exercised his right of appeal for a de nova trial on the six convictions that had resulted in sentences of imprisonment, and the cases were transferred to the jury-of-six session.
We sustain the judge’s action. General Laws c. 218, § 31, is not ambiguous. It requires that the mittimus committing a defendant “to a jail or house of correction upon a sentence of more than six months imposed by a district court” shall not issue “until at least one day after the imposition of such sentence.” A defendant subject to the statute must be notified of his right of appeal to a jury session of the District Court “before” the mittimus issues. The latter provision does not necessarily mean that the required notification has to be postponed until the mittimus is issued. It will be sufficient (and probably more practical) if the defendant is notified of his right of appeal on the day when he is sentenced, provided that he is also advised that he has up to the time the mittimus issues to exercise that right.
Section 31 also requires that a defendant “may exercise such right [of appeal], as provided by law [see G.L. c. 218, § 27A;
The record in this case does not demonstrate that the defendant was properly advised of, or afforded, his right under § 31. Prior to admitting to sufficient facts, he was required to complete a questionnaire designed to establish that his admission was intelligent and voluntary. That questionnaire incorrectly advised him (insofar as sentences involving § 31 were concerned) that he had “to immediately appeal the judge’s finding today” or forever lose the right to appeal. See (as to dispositions not involving § 31) Dist. Ct. Supp. R. Crim. P. 7 (1981).
We think that the judge, at least in the circumstances of this case, could treat the defendant’s motion as a proper rule 30 motion seeking, in essence, a new trial (by claiming an appeal) and that he could act on the motion as a proper vehicle for correcting the problem.
As to the sentences which were not within the purview of § 31, we think, in view of the confusion which had occurred, that the judge could properly allow the defendant to claim an appeal on all his convictions involving incarceration, thereby transferring those convictions to the jury-of-six session for de nova consideration. For the reasons stated, we are not persuaded by the Commonwealth’s arguments that the judge could only correct the date on the mittimus, and that she was otherwise required to deny the motion.
Order affirmed.
Note should be taken of St. 1986, c. 537, §§ 10, 26 and 27, which amend G. L. c. 218, § 27A, to eliminate the two-tier system for criminal cases in Essex and Hampden counties for a two-year period. The amending legislation provides for a one-trial system, with the right to a jury in the first instance. As to cases in those counties arising after the effective date of the amending legislation, G. L. c. 218, § 31, will no longer apply. The charges against the defendant arose before the effective date of the amending legislation. General Laws c. 218, § 31, continues to apply in counties which are not involved in the experiment with the one-trial system.
At the proceedings during which the defendant claimed his right of appeal, the judge brought forward from file the defendant’s convictions of failing to stop for a police officer and operating without a license and imposed a fine of $25 for each conviction. There was no appeal from those dispositions.
We assume that a defendant who. has been properly advised of his right under § 31 can dispense with the one-day waiting period, waive any appeal, and agree to the immediate issuance of a mittimus.
Counsel has made contact with the Administrative Office of that court and advises us that no established procedure presently exists for dealing with a defendant’s right under § 31. It appears that many courts notify the defendant of his right under § 31 at the time of sentencing and then bring him back to court the next day either to claim or waive an appeal.
In the circumstances, we think the Commonwealth has the right to appeal from the allowance of the motion. See Mass.R.Crim.P. 30(c)(8), 278 Mass. 902 (1979). The existence of the two-tier system would make it awkward and impractical to await the outcome of the de nova proceedings, and if the defendant is acquitted by a jury, to review the case on the Commonwealth’s appeal with an eye toward the possible reinstatement of the guilty findings in the primary proceedings. The fact that we treat this as an appeal-able order from the allowance of a role 30 motion does not signal any intent to consider other interlocutory orders in District Court criminal cases.