391 Mass. 1019

May 15, 1984

The case was submitted on briefs.

Willie J. Davis for Leon L. Abrams.

Newman Flanagan, District Attorney, Ellen M. Donahue & John V. Mahoney, Assistant District Attorneys, for the Commonwealth.

The defendant appeals from the denial of his application to a single justice of this court for a reinstatement of his bail. On July 18, 1983, the defendant was arraigned in the Dorchester District Court on the charge of murder in the first degree and was admitted to bail. On July 25, 1983, he was charged with threatening a witness in the murder case and bail was revoked but reinstated the next day. A probable cause hearing was held on all charges on August 8, 1983. Probable cause was found and bail was revoked. The defendant then filed a petition for bail review, and on August 18, 1983, a judge of the Superior Court set bail in the amount of $30,000 with surety, or $3,000 cash. After a Suffolk County grand jury indicted the defendant he was ordered held without bail. He has been in custody since bail was revoked on August 8, 1983, because he was unable to make the bail set on August 18, 1983.

The defendant argues that it was error to deny bail which had been set prior to indictment by the grand jury, without any showing of changed circumstances. He does not raise any issue of abuse of discretion. There was no error.

The defendant contends that the provisions of G. L. c. 276, Section 58, restrict the discretion of the judge. He argues that once bail has been set it cannot be revoked, revised, or amended unless circumstances have changed or that factors not previously known are considered. It is not necessary for us to address this argument or to consider the Commonwealth's contention that changed circumstances existed, because it is clear that G. L. c. 276, Section 58, has no application to this appeal. The provisions of the bail reform act (G. L. c. 276, Section 58) do not extend to a person charged with murder in the first degree. Commonwealth v. Flaherty, 384 Mass. 802 (1981). Since the statute does not apply, the question of bail for a person charged with murder in the first degree is a matter of discretion. Commonwealth v. Carrion,

Page 1020

370 Mass. 408, 410-411 (1976). The defendant makes no claim that discretion was abused.

Judgment affirmed.