428 Mass. 1023 | Mass. | 1999
If we were to reach the merits of the petitioner’s claim, we would conclude that the single justice neither abused his discretion nor committed a clear error of law. See Commonwealth v. Nettis, 418 Mass. 715, 717 (1994). The petitioner presents two primary arguments: that when the suspension of the execution of each of the two sentences at issue was revoked, the sentences were to be served concurrently; and that his right not to be punished twice for the same offense is violated by having him serve those sentences consecutively.
The judge’s statements at the June, 1996, probation surrender hearing clearly indicate that she intended that the sentences were to be served consecutively (for example: “I’m going to impose the first sentence, two years and then on and after that sentence the 2-Vz year sentence that is also suspended”). We do not consider the fact that one judge set the term of probation on each offense to expire on the same day to be conclusive proof that when another judge considered the probation surrender, she would have to order that the sentences be served concurrently. See Stewart, petitioner, 381 Mass. 777, 777-778 (1980). Nor do we accept the petitioner’s interpretation of the second judge’s comments regarding probation expiration as establishing that he decided the sentences, if imposed, should run concurrently.
Our statute provides that if suspension is revoked, “the sentence shall be in full force and effect.” G. L. c. 279, § 3. If the second judge did not specify that the second sentence would be served concurrently should the suspension be revoked, it is not clear that the third judge could have “modified” that sentence by ordering that it be served concurrently. See Commonwealth v. Holmgren, 421 Mass. 224, 228 (1995) (original sentence must be imposed). Moreover, the underlying offenses were separate in time. We conclude that in these circumstances, the third judge properly directed that the sentences be served consecutively.
We turn to the petitioner’s other primary argument to the single justice — that his protection under the Fifth Amendment to the United States Constitution against having his sentence increased was violated, a variation of his argument to the full court about “a violation of the double jeopardy clause.”
The petitioner also refers us to Federal decisions which, he states, indicate that, where it is not clear whether sentences are to run concurrently or consecutively, the presumption is that they are to run concurrently. We do not agree that the situation before the third judge was “unclear.” We look to our statute, G. L. c. 279, § 3, and its command that “the sentence shall be in full force and effect.” We consider the third judge’s action, in these circumstances, to be consistent with the statute.
Judgment of the single justice affirmed.