Opinion
11-P-1261
04-20-2012
COMMONWEALTH v. GREGORY BELLIVEAU.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial in Superior Court, the defendant was convicted of operating a motor vehicle while under the influence of alcohol (OUI), fifth or subsequent offense, G. L. c. 90, § 24(1)(a)(1); and operating a motor vehicle with a suspended license, G. L. c. 90, § 23. He was sentenced to a two and one-half year term of incarceration on the OUI conviction and to three years of probation, on and after, on the operating with a suspended license conviction. After the judgment on the OUI conviction was reversed on appeal, see Commonwealth v. Belliveau, 78 Mass. App. Ct. 1117 (2010), the defendant filed a motion to revise and revoke the sentence imposed on the operating with a suspended license conviction, under Mass.R.Crim.P. 29, 378 Mass. 899 (1979). A judge of the Superior Court, who was not the trial judge, denied the motion, and the defendant has appealed.
The charge subsequently was dismissed.
The motion judge did not abuse his discretion or commit other error of law in denying the defendant's motion to revise or revoke. See Commonwealth v. Shagoury, 6 Mass. App. Ct. 584, 599 (1978). The purpose of rule 29 is 'to permit a judge to reconsider the sentence he has imposed and determine, in light of the facts as they existed at the time of sentencing, whether the sentence was just.' Commonwealth v. Layne, 386 Mass. 291, 295 (1982). The defendant argues that the motion should have been allowed because, having served the entire term of imprisonment on the OUI conviction before the judgment was reversed, he deserved credit toward his term of probation. However, the fact that the defendant served the entirety of the prison term imposed in connection with a conviction that ultimately was reversed has no bearing on the issue whether the sentence was just at the time of sentencing. See ibid.
Order denying motion to revise and revoke affirmed.
By the Court (Vuono, Grainger & Carhart, JJ.),