Commonwealth v. PowersCommonwealth v. Powers
- Reporters:
- , ,
- Before:
- Perretta
After completing deliberations on a complaint charging the defendant with operating a motor vehicle while
1. The Commonwealth’s Right of Appeal.
Whether the Commonwealth has a right of appeal from the judge’s ruling does not turn on the defendant’s characterization of his motion as one for a mistrial. “ [P]leadings are to be treated ‘according to their nature and substance’ rather than their technical form.”
Commonwealth
v.
Preston,
393 Mass. 318, 322-323 (1984). As the trial on the complaint against the defendant had concluded with a verdict and the jury had been discharged, we think that the law (see
Commonwealth v. Leroy,
376 Mass. 243, 247 [1978]) and the realities of the situation require that we view the defendant’s motion as one for a new trial under
Our conclusion is not precluded by the fact that rule 30, “by its terms, addresses only ‘Postconviction Relief’ . . . [and] that the present case does not present the circumstances typically dealt with under that rule” (citations omitted). Commonwealth v. Preston, 393 Mass. at 323. Rather, we think our result consistent with the letter and intent of the rule.
The Reporters’ Notes to
These purposes are served, not frustrated, by viewing the defendant’s motion as one for a new trial. The defendant loses nothing to which he has a right. Any allegations of error in the trial itself are still available to the defendant after the verdict of guilty is entered. See Mass.R.A.P. 4(b), as appearing in 378 Mass. 929 (1979).
Because we conclude that the defendant’s motion was in the nature and substance of a motion for a new trial under rule 30(b), the Commonwealth has a right of appeal under
Chronologically, the events are as follows. The judge allowed the motion on February 15, the Commonwealth filed a motion for reconsideration on February 26, the judge denied that motion on March 7, and the Commonwealth filed its notice of appeal from the February 15 order on April 2. The defendant argues that, even if the Commonwealth has a right of .appeal from the order, that right was not timely exercised and, therefore, we cannot consider the appeal.
There is no question that the Commonwealth had a right to seek reconsideration of the order and that it did so timely. See Commonwealth v. Cronk, 396 Mass. 194, 196-197 (1985); Commonwealth v. Mandile, 15 Mass. App. Ct. 83 (1983). The issue before us is whether the appeal period began to run as of the date of the judge’s order on the defendant’s motion for a new trial or as of the date of the ruling on the Commonwealth’s motion for reconsideration.
Neither Mass.R.A.P. 4(b) nor the parallel Federal rule expressly addresses this question. However, in both civil and criminal Federal cases, the rule is that a timely filed request for reconsideration “render[s] the original judgment nonfinal for purposes of appeal for as long as the [request] is pending.”
United States
v.
Dieter,
429 U.S. 6, 8 (1976). See also
Browder
v.
Director, Ill. Dept. of Corrections,
434 U.S. 257, 267 (1978). As explained in
United States
v.
Healy,
376 U.S. 75 (1964), the rule is based not upon express authorization but upon “traditional and virtually unquestioned practice,”
id.
at 79, and sound policy: “ [S]peedy disposition of criminal cases is desirable, but 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 this Court. It would be senseless for this Court to pass on an issue while a motion for rehearing is pending below, and no significant saving of time would be achieved by altering the ordinary rule to the
In the present case, the Commonwealth preserved its right of appeal within the maximum period of extension that could have been granted under the first sentence of Mass.R.A.P. 4(c), as appearing in 378 Mass. 929 (1979). Cf. Locke v. Slater, 387 Mass. 682, 686 (1982). There is no indication on the record that the Commonwealth was in any way dilatory (compare Commonwealth v. Mandile, 15 Mass. App. Ct. at 84) or acting in bad faith. See United States v. Healy, 376 U.S. at 80 n.4. Hence, we conclude that the Commonwealth’s notice of appeal was filed timely. We may now reach the merits of the appeal.
3. The Verdict.
It is well established that verdict slips are of no binding legal significance. Originally a “convenient practice,”
Lawrence
v.
Stearns,
11 Pick. 500, 501 (1831), verdict slips today are a recognized means of “reducing] errors in the rendering and announcing of verdicts.” Reporters’ Notes to
As is clear from the record, the only basis upon which the judge allowed the defendant’s motion was the conflict between the verdict slip and the verdict publicly announced and twice affirmed. It was, therefore, error to allow the defendant’s motion for a new trial.
The order allowing the defendant’s motion for a mistrial is reversed, and the matter is remanded for entry of the verdict of guilty, as announced and affirmed by the jury, and for imposition of sentence.
So ordered.
Notes
The defendant “objects” to any consideration of the transcript of the proceedings, as it was not prepared in accordance with the procedure set out in Mass.R.A.P. 8(b) (3), inserted by 388 Mass. 1106 (1983). The transcript contains the required certificate of accuracy, and the defendant makes no allegation of error in the transcript. Rather, his contention is simply a perfunctory statement of a technical defect.
This statement has no bearing upon two common practices. The first is where the motion for a new trial is made pursuant to
Our conclusion is limited to the circumstances presented and is not to be construed as recognizing a right of appeal by either party under rule 30(c) (8) where a mistrial is declared in the course of the trial.