Home RHONDA DIBIASE vs. PAUL DIBIASE & others. [Note 1]

423 Mass. 1003

July 9, 1996

The case was submitted on the papers filed, accompanied by a memorandum of law.

Thomas E. Beatrice for Paul DiBiase.

Peter R. Beatrice, Jr., for Ugo DiBiase & another.

David T. Fulmer for the plaintiff.

This is an appeal under S.J.C. Rule 2:21, 421 Mass. 1303 (1995), from a denial by a single justice of this court of a petition for relief under G. L. c. 211, s. 3 (1994 ed.). The defendants had initially petitioned a single justice of the Appeals Court for relief under G. L. c. 231, s. 118, first par. (1994 ed.), which was denied. Because this denial concerned an underlying interlocutory order by a Probate and Family Court judge, rule 2:21 is applicable. The defendants, however, have failed to show why appellate review after a final judgment would not be adequate. They argue that, because an adverse judgment in the Probate Court is not automatically stayed, they will be irreparably harmed by the deprivation of their assets during the pendency of an appeal. This argument fails to address why the substantive error allegedly committed by the single justice of the Appeals Court and the Probate Court judge cannot be remedied on appeal. Any party in a Probate Court proceeding can assert the sort of harm described by the defendants, and therefore it does not provide a basis for extraordinary relief under G. L. c. 211, s. 3.

Judgment affirmed.


FOOTNOTES

[Note 1] Ugo DiBiase and the DiBiase Corporation.

Home BRENDAN McGUINNESS vs. COMMONWEALTH

423 Mass. 1003

July 9, 1996

The case was submitted on the papers filed, accompanied by a memorandum of law.

Brendan McGuinness, pro se.

Robert C. Cosgrove, Assistant District Attorney, for the Commonwealth.

Brendan McGuinness (defendant) moved to dismiss an indictment charging assault and battery on a correctional officer. The defendant argued that

Page 1004

he had already been punished for this offense by a thirty-month confinement in a departmental disciplinary unit, and thus criminal prosecution would subject him to double jeopardy. A Superior Court judge denied the defendant's motion, and he requested relief pursuant to G. L. c. 211, s. 3 (1994 ed.). A single justice of this court denied relief, and the defendant appealed, following the procedure stated in S.J.C. Rule 2:21, 421 Mass. 1303 (1995). The denial of the defendant's motion to dismiss is an interlocutory ruling in the Superior Court. Because the motion was based on a double jeopardy claim, appellate review of its denial after trial and conviction would not provide adequate relief if the defendant were to prevail on the double jeopardy issue after trial. Costarelli v. Commonwealth, 374 Mass. 677 , 680 (1978). Cf. Creighton v. Commonwealth, ante 1001 (1996). The defendant may pursue his appeal according to the regular appellate process.

So ordered.