406 Mass. 1001

November 6, 1989

Janis M. Berry for the defendant.

S. Jane Haggerty, Assistant District Attorney, for the Commonwealth.

The reason that we took this case was to consider whether jeopardy attaches under the Fifth Amendment to the United States Constitution so as to bar a trial of the defendant in the Superior Court for armed robbery arising from the taking of a motor vehicle after he had been convicted in the District Court of larceny (a lesser included offense) of the same motor vehicle arising from the same taking. The Appeals Court decided that the bar of double jeopardy foreclosed a second trial in the Superior Court. 27 Mass. App. Ct. 82 (1989). We granted the Commonwealth's application for further appellate review.

For all the reasons advanced by the Appeals Court (the facts are recited in its opinion), we conclude that the holding in Brown v. Ohio, 432 U.S. 161, 169 (1977), bars a second trial of the defendant on an indictment for armed robbery arising out of the same unlawful taking despite our earlier rule to the effect that a conviction or an acquittal of a defendant for larceny in a District Court is no bar to trial of the defendant for armed robbery for the same taking in the Superior Court because the District Court has no trial jurisdiction of armed robbery. Commonwealth v. Mahoney, 331 Mass. 510, 513-514 (1954). We also agree with the Appeals Court's holding on the issue of waiver. 27 Mass. App. Ct. at 87-88.

The judgment of the Superior court is reversed and the verdict set aside. The indictment is to be dismissed.

So ordered.

Home WILLIAM A. HAHN & others [Note 1] vs. PLANNING BOARD OF STOUGHTON & others. [Note 2]

406 Mass. 1001

December 7, 1989

William A. Hahn for the plaintiffs.

Patrick J. Sharkey for the interveners.

In Hahn v. Planning Bd. of Stoughton, 403 Mass. 332, 338-339 (1988), we remanded the case to a single justice of this court for assessment of

Page 1002

appropriate attorney's fees pursuant to G. L. c. 231, Section 6F (1988 ed.), with respect to certain appeals to this court. A single justice assessed attorney's fees against the plaintiffs jointly and severally in the amount of $5,000, including costs and expenses, and ordered that amount paid on or before a stated date. The plaintiffs have appealed seeking to raise matters that are collateral to the single subject of our remand. We reject all these irrelevant arguments, none of which deserves discussion in this opinion. The plaintiffs do not challenge the amount of the single justice's award.

We reject the defendants' appeal challenging in a three-sentence argument the amount of the single justice's award. The amount was appropriate within the judge's discretion, and he did not have to explain his reasons for somewhat reducing the amount claimed by the defendants.

The judgment is affirmed as modified (1) to reflect our award of a further amount of $2,200 to the defendants for attorney's fees in this appeal and in the proceedings before the single justice, and (2) to state that the amount of the judgment, which shall include interest on $5,000 from the date of the entry of the judgment for that amount, shall be paid by the plaintiffs within thirty days of the date the rescript is entered in the county court. The rescript of this court shall issue immediately.

So ordered.


[Note 1] Thirteen other residents of Stoughton.

[Note 2] Intervening trustees who were the active defendants in this and prior appeals.