Opinion
16-P-489
03-22-2017
COMMONWEALTH v. Steven M. PUTNAM.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant purports to appeal from the order denying his third motion for a new trial. Because the motion is not properly before us, we will not consider it.
Background . On March 1, 2006, a Superior Court jury convicted the defendant of home invasion, armed assault in a dwelling, rape, and assault and battery. The judgments were affirmed by this court on October 19, 2009. See Commonwealth v. Putnam , 75 Mass. App. Ct. 472 (2009). On September 14, 2011, the defendant filed pro se a motion for a new trial, which was denied on November 22, 2011. A panel of this court affirmed the order denying the motion in an unpublished memorandum and order on February 28, 2013. See Commonwealth v. Putnam , 83 Mass. App. Ct. 1115 (2013). On February 28, 2014, the defendant filed pro se his second motion for a new trial, which was denied on April 24, 2014. A panel of this court affirmed the order denying the defendant's second motion in an unpublished memorandum and order on March 19, 2015. See Commonwealth v. Putnam , 87 Mass. App. Ct. 1111 (2015). On March 30, 2015, the defendant filed an application for further appellate review in this court, see Mass.R.A.P. 27.1(d), as amended, 426 Mass. 1602 (1998), however, the defendant waited until February 26, 2016, to file his application for further appellate review at the Supreme Judicial Court (docket number FAR-24146). On March 31, 2016, the defendant's application was denied by the Supreme Judicial Court. 474 Mass. 1101 (2016). On May 16, 2016, the rescript issued to the trial court.
On October 2, 2015, however, the defendant filed pro se his third motion for a new trial, which was denied on December 11, 2015. The defendant filed a notice of appeal from the order denying his third motion for a new trial on December 28, 2015.
Motion for a new trial . While his appeal from the order denying his second motion for a new trial was pending, the defendant filed this third motion for a new trial. Once an appeal is entered in the Appeals Court, a motion for a new trial may be considered only if appellate proceedings are stayed by a single justice. Commonwealth v. Montgomery , 53 Mass. App. Ct. 350, 353 (2001). Where there was no stay granted by a single justice of the Appeals Court, the Superior Court was divested of jurisdiction to hear the motion for a new trial. Consequently, nothing is before us with respect to the order denying the defendant's third motion for a new trial. The order denying the defendant's third motion for a new trial is vacated "and [that motion is] to be treated as not acted upon and awaiting determination by the Superior Court." Id . at 355.
So ordered .
Order denying motion for new trial vacated.