LaDonna J. Hatton, Assistant Attorney General, for the Commonwealth.
Thomas Lesser for the plaintiff.
Nettis (defendant) filed a motion to dismiss the three-count indictment against him. That motion was denied based on G. L. c. 277, Section 63 (1990 ed.). The defendant then sought relief pursuant to G. L. c. 211, Section 3 (1990 ed.). A single justice of this court denied relief under G. L. c. 211, Section 3. The defendant appeals. The appeal must be dismissed. "The denial of a motion to dismiss pursuant to Mass. R. Crim. P. 13[, 378 Mass. 871 (1979),] is not appealable by a defendant until after trial. General Laws c. 211, Section 3, may not be used to circumvent our rule. . . . General Laws c. 211, Section 3, is not a substitute for normal appellate review of interlocutory orders." Ventresco v. Commonwealth, 409 Mass. 82 , 83-84 (1991). (Footnote omitted.) In this case, the defendant's claim for review does not meet the two-part test set forth in Morrissette v. Commonwealth, 380 Mass. 197 , 198 (1980). The single justice did not reserve and report the issue: nor did he decide the issue. He merely denied relief pursuant to G. L. c. 211, Section 3. This appeal therefore is not properly before us. See Ventresco v. Commonwealth, supra.
The case was considered on the Commonwealth's motion to dismiss, a memorandum in support thereof, and the plaintiff's opposition thereto; the record before the single justice; and the Commonwealth's request for an expedited decision.
Practice, Civil, Appeal. Supreme Judicial Court, Superintendence of inferior courts.
Daniel Giacomozzi, pro se, submitted a brief.
The plaintiff appeals from the judgment of a single justice of this court denying a petition for relief under G. L. c. 211, Section 3 (1990 ed.). That petition sought relief from the denial by a Superior Court judge of a request
for injunctive relief requiring the return of certain property seized from the plaintiff. [Note 2]
"Our cases have emphasized that relief under G. L. c. 211, Section 3, may not be sought merely as a substitute for normal appellate review." Soja v. T.P. Sampson Co., 373 Mass. 630 , 631 (1977). The issues raised before the single justice could have been raised in an appeal to the Appeals Court from the denial of the plaintiff's request for injunctive relief. See, e.g., G. L. c. 231, Sections 113 and 118, second par. (1990 ed.). There was no occasion for this court to exercise its extraordinary authority under G. L. c. 211, Section 3.
[Note 1] Braintree Towing and Robert Smith, a Braintree police officer.
[Note 2] It appears from papers filed in this court that the property involved is the plaintiff's motor vehicle (and tools therein) which was stopped by a Braintree police officer and then towed.