403 Mass. 1004

October 4, 1988

The case was submitted on briefs.

James M. Shannon, Attorney General, & Sandra L. Hautanen, Assistant Attorney General, for the Commonwealth.

Paul Simmons, pro se.

The plaintiff appeals from an order entered in the county court denying him relief on a petition under G. L. c. 211, Section 3 (1986 ed.). We shall assume in the plaintiff's favor that his appeal also brings before us his challenge to a related judgment in the county court denying him a writ of habeas corpus on a complaint raising the same challenge to his indictments. The plaintiff's objections based on circumstances existing at the time of his trial could have been presented by an appeal from his convictions and those based on any posttrial circumstances could have been made by a postconviction motion under Mass. R. Crim. P. 30 (a), 378 Mass. 900 (1979). He was not entitled to relief as a matter of right in the proceedings in the county court. See Hadfield v. Commonwealth, 387 Mass. 252 , 256 (1982) (G. L. c. 211, Section 3); Morrissette v. Commonwealth, 380 Mass. 197 , 198-200 (1980) (G. L. c. 211, Section 3); Crowell v. Commonwealth, 352 Mass. 288 , 289 (1967) (habeas corpus). Moreover, the record does not support his claim that the indictments were fraudulent, nor does it show that his challenge in the Superior Court to the indictments was timely.

Order in No. 87-218 and judgment in No. 87-148 affirmed.

Home BRUCE SWANSON, petitioner.

403 Mass. 1004

October 4, 1988

Paula J. DeGiacomo, Assistant Attorney General, for the Commonwealth.

Diana L. Maldonado, Committee for Public Counsel Services, for the petitioner.

The Commonwealth appeals, purportedly pursuant to G. L. c. 231, Section 113 (1986 ed.), from an order under G. L. c. 123A, Section 9 (1986 ed.), discharging the petitioner from the treatment center maintained by the Department

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of Mental Health. The judge determined that the Commonwealth had failed to prove beyond a reasonable doubt that the petitioner remained a sexually dangerous person as defined in G. L. c. 123A, Section 1 (1986 ed.). We transferred the Commonwealth's appeal to this court.

Assuming the Commonwealth properly may challenge such a determination on appeal without running up against due process of law (cf. Commonwealth v. Travis, 372 Mass. 238 , 249 [1977]) and double jeopardy barriers (Is the judge's conclusion analogous to a jury verdict of not guilty?), and assuming the proper standard on appeal is whether the judge's finding was clearly erroneous, there was no error. The testimony of the petitioner, his parents, and a psychiatrist provided an ample basis to warrant the judge's conclusion that there was a reasonable doubt. His determination that the Commonwealth had not met its burden of proof was thus not clearly erroneous. The fact that there was strong expert opinion contrary to the judge's ultimate finding does not justify a reversal of the judge's order. See Commonwealth v. Lamb, 372 Mass. 17 , 24 (1977).

Order allowing petition affirmed.