Opinion
November 8, 2007.
Supreme Judicial Court Appeal from order of single justice, Superintendence of inferior courts. Practice, Civil, Motion to dismiss.
Charles W. Groce, III, for the petitioner.
Antonio Sanchez appeals from a judgment entered by a single justice of this court denying his petition for relief pursuant to G. L. c. 211, § 3. We affirm.
Sanchez is the subject of a pending indictment in the Superior Court for aggravated rape. He moved unsuccessfully to dismiss the indictment, claiming that it was barred by the fifteen-year statute of limitations. See G. L. c. 277, § 63. Although more than fifteen years had elapsed between the alleged offense and the defendant's indictment, the Commonwealth successfully argued to the motion judge that it was a jury question whether the statute of limitations was tolled where the defendant, although not physically absent from Massachusetts, used an alias during a portion of the relevant period. The single justice denied Sanchez's G. L. c. 211, § 3, petition without a hearing.
General Laws c. 277, § 63, provides, in pertinent part: "Any period during which the defendant is not usually and publicly a resident within the commonwealth shall be excluded in determining the time limited."
In his G. L. c. 211, § 3, petition, Sanchez also challenged unsuccessfully an order entered in the Superior Court requiring him to submit to a buccal swab for deoxyribonucleic acid analysis. See Brown v. Commonwealth, 445 Mass. 1016, 1016 (2005), and cases cited. He does not, however, press that issue here.
The case is now before us pursuant to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001). Sanchez acknowledges our decision in Ackerman v. Commonwealth, 445 Mass. 1025 (2006) (alternative avenues to relief under G. L. c. 211, § 3, exist for pursuing statute of limitations defense), but claims that review under G. L. c. 211, § 3, is nonetheless appropriate because the underlying legal issue — whether the use of an alias is the equivalent of being "not usually and publicly a resident" — is novel. Even if the issue were novel, it can be adequately (and perhaps better) addressed in a direct appeal. The defendant is not entitled to review as a matter of right under G. L. c. 211, § 3. See Ventresco v. Commonwealth, 409 Mass. 82, 83 (1991) ("The denial of a motion to dismiss . . . is not appealable by a defendant until after trial. General Laws c. 211, § 3, may not be used to circumvent our rule. . . . Unless the single justice . . . either decides the issue or reports the matter to the full court, a defendant cannot receive review under the statute of the denial of a motion to dismiss").
Judgment affirmed.
The case was submitted on the papers filed, accompanied by a memorandum of law.