385 Mass. 1011

April 5, 1982

The defendant petitioned the Superior Court for compensation pursuant to G. L. c. 277, Section 73. The Superior Court denied compensation and reported the case to the Appeals Court. We transferred the case to this court on our own motion.

The defendant was arrested on September 28, 1972, indicted for murder and armed robbery, and held without bail. He was convicted by a jury on February 2, 1973, and sentenced to life imprisonment at the Massachusetts Correctional Institution at Walpole. The judgments of conviction were reversed on July 9, 1975, and the case remanded for retrial. Commonwealth v. Graziano, 368 Mass. 325 (1975). The defendant was confined awaiting retrial from July 9, 1975, to April 15, 1976, when he was released on bail by an order of the Supreme Judicial Court. He moved for a trial continuance on December 18, 1975, and for a polygraph test on January 21, 1976. The defendant did not move for a speedy trial. He was acquitted by a jury on November 26, 1977.

General Laws c. 277, Section 73, permits the awarding of compensation to defendants who have been confined awaiting trial for more than six months and have been acquitted, unless they consented to or requested the delay in reaching trial. Less than six months had elapsed between the defendant's arrest and first trial. During the period between his first convictions and our reversal on appeal, the defendant was lawfully imprisoned and was not "awaiting trial" within the meaning of Section 73. Although the defendant was confined awaiting retrial from July 9, 1975, to April 15, 1976, he is not entitled to compensation under c. 277, Section 73, because, by his failure to move for a speedy trial and by bringing the aforementioned motions, the defendant impliedly consented to delaying the trial for at least as much of that period as exceeded six months. Commonwealth v. Davis, 367 Mass. 422 (1975).

The case is remanded to the Superior Court where judgment is to enter for the Commonwealth.

So ordered.