424 Mass. 1007

February 7, 1997

John P. Zanini, Assistant District Attorney, for the Commonwealth.

Nancy E. P. Connelly for the defendant.

The defendant was charged in the Boston Municipal Court with two counts of assault and battery on a correctional officer. The offenses allegedly occurred while the defendant was being held at the Suffolk County jail, awaiting sentencing on an unrelated matter. He moved to dismiss the charges, claiming that he had already been punished for these offenses when jail officials sentenced him to two ten-day terms (one of which was suspended) in a segregated unit within the jail. Therefore, he contended, a separate criminal prosecution for the same offenses would subject him to double jeopardy.

The motion judge allowed the defendant's motion and dismissed the complaint. The Commonwealth appealed from the dismissal. G. L. c. 278, s. 28E. We granted the Commonwealth's application for direct appellate review.

After the appeal was transferred to this court, we issued our decision in Commonwealth v. Forte, 423 Mass. 672 (1996). We held that sentences to the departmental disciplinary unit of a State prison did not bar, on double jeopardy ground, the subsequent criminal prosecutions of the defendants in that case for the same offenses. Our analysis in that case is controlling here. The segregation unit involved in this case, like the disciplinary unit in Forte, serves deterrent and remedial purposes, as the motion judge expressly noted. In addition to a punitive purpose. Furthermore, "assuming, without deciding, that prison discipline, at least under some extreme circumstances may invoke double jeopardy principles," this is hardly a case where the defendant has demonstrated on "the clearest proof" that the sanctions imposed by the officials at the jail were "so extreme in purpose or effect as to be equivalent to a criminal penalty." See id. at 677-678.

The order dismissing the complaint is vacated. The case is remanded to the Boston Municipal Court.

So ordered.


424 Mass. 1007

February 7, 1997

Lori K. Odierna, Assistant District Attorney, for the Commonwealth.

Thomas F. McGuire, for the defendant, submitted a brief.

The Commonwealth purports to appeal from an order of a single justice denying its application for leave to appeal from the allowance of the defendant's motion to suppress in the Superior Court. See Mass. R. Crim.

Page 1008

P. 15 (b) (2). 378 Mass. 882 (1979). See also G. L. c. 278, s. 28E. The Commonwealth states in its notice of appeal, which it filed in the county court, that it "claims its appeal pursuant to" G. L. c. 211, s. 3.

This matter is not properly before us. As we held in Commonwealth v. Dunigan, 384 Mass. 1 , 3-5 (1981). and thereafter in Commonwealth v. Boncore 412 Mass. 1013 , 1014 (1992), no appeal lies from the denial by a single justice of an application for leave to appeal in these circumstances. We stated in those cases that the Commonwealth's sole remedy would be to file a petition before the full court pursuant to G. L. c. 211. s. 3, and we cautioned that we would exercise our power under that statute only in exceptional circumstances. Dunigan, supra at 5. We also made clear in Boncore that we would be unwilling to indulge the Commonwealth in future cases such as this where it follows the wrong procedure. Id. at 1014 n.1.

The Commonwealth's reference to G. L. c. 211, s. 3, in its notice of appeal is not an adequate substitute for a petition properly filed before the full court. While there may be some similarities in the appeal and petition procedures, there are also substantial differences. A petition can be disposed of comparatively quickly, and, unlike an appeal, may be resolved with an order and not necessarily an opinion, and without the need for full briefing and oral argument. The filing of an appeal, as the Commonwealth has done here, effectively negates the single justice's role as gatekeeper, renders meaningless the rule and statute, and unnecessarily delays the resolution of the matter. Cf. Leaster v. Commonwealth, 385 Mass. 547 (1982) (holding that no appeal lies from a single justice's order as a gatekeeper pursuant to G. L. c. 278, s. 33E). Contrast Commonwealth v. Kuszewski, 385 Mass. 802 (1982) (holding that Commonwealth may appeal to full court after a single justice grants defendant's application for leave to appeal and orders that motion to suppress be allowed).

Appeal dismissed.