407 Mass. 1003

April 4, 1990

The case was submitted on briefs.

Stephen Bolton, pro se.

Kevin M. Burke, District Attorney, & Robert J. Bender, Assistant District Attorney, for the Commonwealth.

A single justice of this court denied the plaintiff's petition for a writ of mandamus seeking an order that the Appeals Court accept the plaintiff's motion to dismiss or to grant appropriate relief. The clerk of that court had returned the plaintiff's motion as procedurally inappropriate. The plaintiff had been convicted of two counts of rape by means of unnatural sexual intercourse. It appears that the motion to the Appeals Court challenged the admission of certain evidence at trial that had not been presented to the grand jury. The plaintiff also objected to portions of the charge to the jury at his trial.

At the time the plaintiff sought to file his motion with the clerk of the Appeals Court, that court had already affirmed the plaintiff's convictions. See Commonwealth v. Bolton, 27 Mass. App. Ct. 1407 (1989). The motion may well have been untimely. Its content appears to present a claim for postconviction relief that could be presented in the trial court pursuant to Mass. R. Crim. P. 30, 378 Mass. 900 (1979). Although we question the action of a clerk in refusing to accept and docket a motion unless so ordered

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by a judge, the plaintiff's right to have the motion docketed was one he could pursue (and may still pursue) by an appropriate motion in the Appeals Court. See Burnham v. Clerk of the First Dist. Court of Essex, 352 Mass. 466 , 467 (1967); Royal Tool & Gauge Corp. v. Clerk of Courts for the County of Hampden, 326 Mass. 390 , 392 (1950). Thus, because there was another avenue of relief, the single justice of this court appropriately, in his discretion, denied the petition for mandamus. See Commonwealth v. Langton, 389 Mass. 1001 , 1001-1002 (1983). We add that, with respect to the basic point that the plaintiff apparently seeks to make, on the record before us, we see no error in the admission of evidence that the plaintiff displayed a knife in the course of committing the crimes of which he was convicted.

Order denying the petition for mandamus affirmed.