6 Mass. App. Ct. 938

October 24, 1978

The defendant was arraigned in a District Court and released on personal recognizance on several complaints including assault and battery by means of a dangerous weapon, a motor vehicle. On the appointed day the defendant appeared with counsel ready for trial; but the Commonwealth was granted a continuance in excess of the ten-day limitation imposed by G. L. c. 276, Section 35. During the continuance the defendant was indicted on the same charges and arrested. He was released on the following day on personal recognizance. For the reasons stated in his findings of fact and rulings of law, there was no error in the Superior Court judge's denial of the defendant's motion to dismiss the indictments based upon the defendant's assertion that his constitutional right to a speedy trial had been denied (in violation of art. 11 of the Declaration of Rights and the Sixth Amendment to the Constitution of the United States made applicable to the States by the Fourteenth Amendment) by the grant of a continuance to the Commonwealth in excess of the limitation imposed by Section 35. Dismissal does not occur as

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a matter of right where the time limitation of that section is violated even though, as here, a continuance in excess of that limitation triggers an examination as to whether the delay was excusable and whether the defendant was prejudiced thereby. Commonwealth v. Ludwig, 370 Mass. 31 , 34 n.1 (1976). The judge's findings support his conclusion that there were adequate reasons for the continuance (Barker v. Wingo, 407 U.S. 514, 531 [1972]; contrast Commonwealth v. Thomas, 353 Mass. 429 [1967]), and the defendant's night in jail did not warrant dismissal of the indictments. United States v. Gorthy, 550 F.2d 1051, 1054 (5th Cir. 1977).

Judgment affirmed.