Opinion
No. 16–P–637.
12-29-2016
COMMONWEALTH v. William D. LAJOIE.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from an order of a single justice of this court denying his renewed motion to dismiss the Commonwealth's interlocutory appeal as untimely. Within ten days of a trial judge's order allowing the defendant's motion to suppress, the Commonwealth filed a notice of appeal and a motion to extend the time for filing an application under Mass.R.Crim.P. 15, as appearing in 422 Mass. 1501 (1996), for leave to take an appeal. The judge allowed the motion, and the Commonwealth thereafter filed its rule 15 application with a single justice of the Supreme Judicial Court (SJC). The SJC single justice deemed the application "timely filed" and directed that the Commonwealth's appeal proceed in this court.
The Commonwealth first mistakenly filed its application in Superior Court before the extended deadline; it refiled the application in the SJC two weeks after the deadline when the mistake came to light.
After the Commonwealth's appeal was docketed, the defendant filed a motion to dismiss in this court, arguing for the first time that the Commonwealth's rule 15 application was untimely under Mass.R.A.P. 4(c), as amended, 378 Mass. 928 (1979), because it was filed more than forty days (fifty-one days, to be exact) after entry of the trial judge's order allowing the motion to suppress. An Appeals Court single justice denied the motion "without prejudice to renewal in the SJC" on the earlier SJC single justice docket. The defendant then filed a renewed motion to dismiss, but again in this court, not in the SJC as instructed. The same single justice denied the renewed motion, ruling that he lacked authority under Commonwealth v. Jordan, 469 Mass. 134, 148 (2014), to grant the requested relief.
The defendant now appeals the single justice's order, but he fails to demonstrate any abuse of discretion. Jordan establishes a procedure governing rule 15 applications, under which the SJC single justice will resolve "any questions concerning the timeliness of the notice of appeal and the application"; this court should "focus only on the substantive merits of the interlocutory appeal and not ... revisit any questions about late filing." Ibid. The single justice's order is consistent with this procedure and not an abuse of discretion, especially given that an SJC single justice has already ruled that the Commonwealth's rule 15 application was "timely filed." ,
To the extent the Commonwealth is asking us to overrule Commonwealth v. Demirtshyan, 87 Mass.App.Ct. 737 (2015), as inconsistent with Jordan, that issue is also appropriately addressed to the SJC, which, again, has jurisdiction over all questions of timeliness concerning rule 15 applications.
Contrary to the defendant's argument, the Appeals Court single justice's action did not run afoul of Mass.R.A.P. 15(c), 365 Mass. 859 (1974). That rule only prohibited the single justice from "dismiss[ing] or otherwise determin[ing][the] appeal." Ibid.
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Order of the single justice affirmed.