COMMONWEALTH vs. CHRISTOPHER J. ANDERSON.

HENNESSEY, C.J. The defendant was charged in four criminal complaints. One charged him with being a disorderly person, G. L. c. 272, Section 53 (1986 ed.), and each of the other three charged him with assault and battery on a police officer in the performance of his duty, G. L. c. 265, Section 13D (1986 ed.). The defendant was convicted on all complaints following a bench trial.

The defendant exercised his right to trial de novo in a District Court jury of six session. On the second day of trial the judge, upon the defendant's motion, dismissed the complaints without prejudice. His reasons for dismissing the complaints were the prosecutor's tardiness and lack of readiness to proceed on the first day of trial, the prosecutor's repeated tardiness on the second day of trial, and the unfairness to the jurors, the witnesses, and the defendant inherent in the prosecutor's undue delays. [Note 1] At the close of the first day of trial, the judge had specifically instructed the prosecutor to arrive punctually at 9 A.M. on the second day of trial. This instruction was not observed.

The Commonwealth filed a notice of appeal of the dismissals in the District Court, and then filed a motion to vacate the dismissals. The motion to vacate was denied, and the Commonwealth filed its appeal of the dismissals in the Appeals Court. The Appeals Court ordered that the complaints be reinstated and that the case be remanded to the District Court for a trial before a new jury. Commonwealth v. Anderson, 24 Mass. App. Ct. 959, 959-960 (1987). We allowed the defendant's application for further appellate review. We conclude that the District Court judge did not abuse his discretion in dismissing the complaints without prejudice.

The defendant initially contends that the Commonwealth has no right of appeal from the District Court judge's dismissal of the complaints, or, in the alternative, that the Commonwealth failed to perfect whatever appellate rights it had. We disagree.

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Under G. L. c. 278, Section 28E (1986 ed.), [Note 2] the Commonwealth has a right to appeal from the District Court judge's dismissal of the complaints. See Commonwealth v. Brusgulis, 398 Mass. 325, 326 n.1 (1986), and cases cited. [Note 3] The first clause of the first paragraph of Section 28E explicitly allows the Commonwealth's appeal. There is no merit to the defendant's argument that the Commonwealth is somehow denied that right, even if he is correct in his assertion that the District Court judge relied on inherent supervisory power and not on a particular rule of criminal procedure in dismissing the complaints. [Note 4]

The Commonwealth properly perfected its appeal by filing a notice of appeal in the District Court within thirty days of the dismissals. See Mass. R. A. P. 3 (a), as amended, 378 Mass. 924 (1979); Mass. R. A. P. 4 (b), as appearing in 378 Mass. 924 (1979). The Commonwealth's failure to take further steps to perfect its appeal until after the District Court judge ruled on the motion to vacate the dismissals does not prevent the appeal. See Mass. R. A. P. 3 (a). In fact, had the Commonwealth filed its appeal with the Appeals Court prior to the

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District Court judge's ruling on the motion to vacate, the District Court judge would have been without jurisdiction to make that ruling. Commonwealth v. Cronk, 396 Mass. 194, 196-197 (1985).

We now turn to the merits. The Commonwealth argues that the judge should not have dismissed the complaints absent a showing of egregious misconduct by the prosecutor or a showing that the defendant is now unable to receive a fair trial. See, e.g., Commonwealth v. Cronk, supra at 196-198; Commonwealth v. Cinelli, 389 Mass. 197, 210, cert. denied, 464 U.S. 860 (1983); Commonwealth v. Light, 394 Mass. 112, 114 (1985). However, the cases relied on by the Commonwealth involve dismissals with prejudice. Where, as here, the dismissals are without prejudice, the judge's action should be upheld in the absence of an abuse of discretion. See Commonwealth v. Salman, 387 Mass. 160, 168 (1982); Commonwealth v. Pomerleau, 13 Mass. App. Ct. 530, 536 (1982).

The District Court judge acted within his discretion in dismissing the complaints without prejudice. The judge was warranted in finding, as he did, that the prosecutor's unpreparedness and tardiness resulted in unnecessary inconvenience to the jurors and to the defendant. Continued unnecessary delay may well have increased the restlessness, apparent from the record, among the jurors and the defense witnesses, to the detriment of the defendant. In the circumstances, the judge, in exercise of his discretion, would have been warranted in declaring a mistrial on motion of the defendant, and requiring the Commonwealth to retry the case. See Commonwealth v. Simmonds, 386 Mass. 234, 241 (1982), citing Commonwealth v. Hoffer, 375 Mass. 369, 372-373 (1978). The Commonwealth has demonstrated no undue prejudice from the judge's decision to require instead that it seek fresh complaints and begin the process of prosecuting the defendant anew. [Note 5] Absent such demonstration of prejudice we discern no abuse.

The defendant also seeks recovery of attorney's fees for this appeal pursuant to Mass. R. Crim. P. 15 (d), 378 Mass. 882

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(1979). However, it strains logic to conclude that the authorization of attorney's fees contained in rule 15 (d) extends to appeals not taken pursuant to rule 15. This appeal could not have been taken under rule 15. See note 3, supra. The appeal is before us pursuant to G. L. c. 278, Section 28E, which does not authorize the award of attorney's fees. In the absence of such authorization, the parties must bear their own cost of litigation. See, e.g., Fuss v. Fuss (No. 1), 372 Mass. 64, 70 (1977); Bournewood Hosp., Inc. v. Massachusetts Comm'n Against Discrimination, 371 Mass. 303, 311-312 (1976). The defendant has no basis for recovery of attorney's fees.

The District Court judge's dismissal of the complaints without prejudice is affirmed.

So ordered.