Opinion
15-P-151
02-04-2016
COMMONWEALTH v. EUGENE CHARLES BERTINI.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On October 17, 1996, the defendant was charged with escape, in violation of G. L. c. 268, § 16, in a one-count complaint. The charge stemmed from the defendant's removal of an electronic monitoring device that the defendant had been required to wear as a condition of home confinement imposed in another case. He subsequently pleaded guilty and was sentenced to sixty days in the house of correction. On September 24, 2014, the defendant filed a motion for a new trial pursuant to Mass.R.Crim.P. 30, as appearing in 435 Mass. 1501 (2001), asserting that he was unlawfully convicted because the conduct underlying the charge did not constitute a crime under the statute. A hearing on the defendant's motion was held on October 3, 2014. The Commonwealth did not oppose the defendant's motion, which was allowed by the judge at the hearing without any discussion of its merits. Thereafter, at the judge's suggestion, the Commonwealth filed a nolle prosequi.
The docket entry for October 3, 2014, indicates both that the defendant's motion was allowed and that a nolle prosequi was filed.
About four weeks later, on October 31, 2014, the judge, sua sponte, entered an order vacating her prior ruling, thereby reinstating the defendant's conviction. The defendant responded by filing a motion to reconsider, which was denied on November 19, 2014. The defendant's appeal from the judge's orders is now before us.
The defendant and the Commonwealth both argue that the judge had no authority to reinstate the defendant's conviction after the Commonwealth had filed a nolle prosequi. They are correct. The filing of the nolle prosequi effectively terminated the criminal case and, as a result, the judge did not have the authority to intervene and reinstate the case against the defendant. See Commonwealth v. Miranda, 415 Mass. 1, 6 (1993) (entry of nolle prosequi terminated criminal prosecution).
Orders dated October 31, 2014, and November 19, 2014, reversed.
By the Court (Vuono, Carhart & Kinder, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: February 4, 2016.