11 Mass. App. Ct. 1035

May 15, 1981

This is an appeal from an order for the issuance of an execution enforcing a judgment of lump sum alimony. Notwithstanding the presence in the record of a statement of the evidence pursuant to Mass.R.A.P. 8(c), as appearing in 378 Mass. 933 (1979), we look to the transcript. After review of the transcript and the record appendix, we conclude that there was no error.

The husband appears not to have paid any portion of the outstanding judgment of alimony. It is within the discretion of the judge "to determine in what amount, if any, an execution should issue for unpaid arrears." Briggs v. Briggs, 319 Mass. 149 , 152 (1946). Notwithstanding the representations made by the husband's counsel at the hearing, nowhere in this record has it been made to appear that the judge abused that discretion. The judge could reasonably have been unimpressed by the husband's offer to give oral testimony at that hearing. The husband had not submitted a financial statement or presented by affidavit or otherwise any specific information pertaining to his present financial condition. Moreover, the record is devoid of any unequivocal assertion by the defendant of his present inability to pay the judgment due to changed circumstances.

It is unnecessary for us to consider whether the judge improperly rejected the defendant's attempt to be heard on his complaint for modification. The judge could properly consider any evidence of changed circumstances on the motion to issue the execution. Cf. Briggs v. Briggs, supra.

Order affirmed.


11 Mass. App. Ct. 1035

May 15, 1981

The defendant appeals from his conviction at a trial to a judge without a jury on an indictment charging him with armed robbery while masked. The defendant raises two issues on appeal: (1) that the Commonwealth's failure to bring him to trial within 180 days of receiving his demand under art. III of the Interstate Agreement on Detainers (IAD) (St. 1965, c. 892, Section 1) required dismissal of the indictment against him, see art. V(c), IAD, and (2)

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that dismissal of the indictment also was required under the provisions of Mass.R.Crim.P. 36(d)(3), 378 Mass. 913 (1979).

1. Interstate Agreement on Detainers. We agree with the conclusions stated in the judge's memorandum and order denying the defendant's motion to dismiss.

The judge found that "[n]o communication from any Massachusetts authority to the California authorities had made any reference to [the indictment in question]." That finding is amply supported by the record. The judge could properly have rejected the assertions in the defendant's affidavit and have accepted the statements contained in his counsel's supplementary affidavit.

The 180 days does not begin to run until "the detainer has been lodged against the prisoner," art. III(a), IAD; Commonwealth v. Anderson, 6 Mass. App. Ct. 492 , 493-494 (1978); see Commonwealth v. Giordano, 9 Mass. App. Ct. 888 (1980), and the judge correctly determined that the detainer was not lodged on the instant indictment until May 16, 1980, a date well within 180 days of the trial date (September 24, 1980). Thus, when the factual predicate is removed, the defendant's argument evaporates.

2. Massachusetts Rules of Criminal Procedure. There was no violation of Mass.R.Crim.P. 36(d)(3). The defendant has not demonstrated any prejudice to him. Cf. Commonwealth v. Gove, 366 Mass. 351 , 361 (1974). The claims put forth by the defendant are not only speculative, but are unreasonable in light of his circumstances, i.e., in addition to violating parole in Massachusetts, he had defaulted on an armed robbery charge here and fled to California where he was convicted and incarcerated on a similar serious felony charge. Nor has the defendant shown that the prosecutor unreasonably delayed in causing the detainer to be filed.

Judgment affirmed.