419 Mass. 421 | Mass. | 1995
The defendant appeals from the denial of his motion for release from unlawful restraint. We transferred the case here on our own motion and now affirm.
On January 3, 1992, the Dorchester Division of the District Court department issued a complaint against the defendant for receiving a stolen motor vehicle in violation of G. L. c. 266, § 28 (1992 ed.), and for possessing an instrument to administer a controlled substance in violation of G. L. c. 94C, § 27 (1992 ed.). On May 6, 1992, following a bench trial, the defendant was found guilty on both counts. The judge ordered the defendant to pay restitution, imposed a one-year suspended sentence, and apparently placed the defendant on probation. Approximately two months later, a default warrant was issued against the defendant.
While incarcerated at the Plymouth County house of correction on an unrelated matter,
On May 24, 1993, the judge conducted a probation revocation hearing and found the defendant to be in violation of the terms of his probation agreement. The judge then revoked the defendant’s suspended sentence and imposed a one-year committed sentence to the house of correction. The defendant filed a motion pursuant to Mass. R. Crim. P. 30 (a), 378 Mass. 900 (1979), for release from unlawful re
General Laws c. 279, § 3 (1992 ed.), provides that a prisoner, against whom a default warrant issues and who makes application for disposition of such warrant, shall be granted such disposition within six months.
The defendant also contends that his due process rights were violated when he did not receive a hearing within the time specified in G. L. c. 279, § 3. We disagree. We recognize that a person whose probation is subject to revocation is entitled to a revocation hearing. See Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973); Commonwealth v. Durling, 407 Mass. 108, 112 (1990). However, the defendant in this case has not demonstrated that the Commonwealth intentionally delayed the revocation hearing or that he suffered any prejudice as a result of the delay. See Commonwealth v. Odoardi, 397 Mass. 28, 36-37 (1986) (holding defendant did not demonstrate that Commonwealth failed to act diligently in commencing revocation hearing or that defendant prejudiced by delay).
For the foregoing reasons, the denial of the defendant’s motion for release from unlawful restraint is affirmed.
So ordered.
The record does not disclose why a default warrant was issued against the defendant.
The record does not indicate when this period of incarceration commenced.
General Laws c. 279, § 3 (1992 ed.), states in pertinent part: “If a warrant has been issued by the court for the arrest of such a person and he is a prisoner in any correctional institution, jail or house of correction . . . such prisoner [shall be notified] that he has the right to apply to the court for prompt disposition thereof. . . . Any such prisoner shall, within six months after such application is received by the court, be brought into court for sentencing or other lawful disposition of his case as hereinbefore provided.”
Rule 36 of the Massachusetts Rules of Criminal Procedure, 378 Mass. 909 (1979), was adopted in 1979 to replace G. L. c. 277, § 72A, repealed by St. 1979, c. 344, § 42, which had provided for the speedy disposition of untried criminal indictments filed against any prisoner then incarcerated in the Commonwealth. Although G. L. c. 277, § 72A, contained discretionary language regarding the dismissal of charges for want of a speedy trial, rule 36 created a right of dismissal for failure to comply with the clear standards established within the rule. See Reporters’ Notes to Mass. R. Crim. P. 36, Mass. Ann. Laws, Rules of Criminal Procedure, at 524 (Law. Co-op. 1979).
This court has stated that a judge has the power to extend or to revoke a person’s probation if done so within a reasonable time after the expiration of the original probationary period. Commonwealth v. Sawicki, 369 Mass. 377, 384-385 (1975). What constitutes a reasonable time is to be determined on a case-by-case basis. Id. at 385. However, in the instant case, the defendant’s original probationary period had not expired. Therefore, although Sawicki is not relevant to the facts of the instant case, it is evidence of the extensive discretion afforded to judges when handling probationary matters similar to the matter that the court is confronted with today.