Home WARREN HOLLAND vs. COMMONWEALTH.

425 Mass. 1003

June 30, 1997

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

Warren Holland, pro se.

The petitioner (defendant), who had sought relief from an interlocutory ruling of the Superior Court denying a motion to dismiss, appeals to the full court under S.J.C. Rule 2:21, 421 Mass. 1303 (1995), from a single justice's denial of relief under G. L. c. 211, s. 3.

The defendant has not met the rule's requirement that he "set forth the reasons why review of the trial court decision cannot adequately be obtained on appeal from any final adverse judgment in the trial court or by other available means." "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." Ventresco v. Commonwealth, 409 Mass. 82 , 83 (1991).

Judgment affirmed.

Home LUIS D. PEREZ vs. SUPERINTENDENT, MASSACHUSETTS CORRECTIONAL INSTITUTION, CONCORD.

425 Mass. 1003

June 30, 1997

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

Luis D. Perez, pro se.

The plaintiff inmate filed a motion seeking an order in the Superior Court directing certain officials to permit him to collect signatures in anticipation of his becoming a candidate for political office. A judge in the Superior Court denied the motion because he had previously allowed a defense motion for summary judgment. The petitioner then requested relief in the form of a "Petition for Writ of Execution" pursuant to G. L. c. 211, s. 3, and a single justice denied the request. The plaintiff now appeals to the full court under S.J.C. Rule 2:21, 421 Mass. 1303 (1995).

It is not clear from the papers the petitioner has submitted that the denial of his request for an order which would have permitted him to collect signatures was an interlocutory ruling, so that rule 2:21 would apply. We assume, without deciding, that it was interlocutory. The petitioner has not demonstrated, as rule 2:21 (2) requires, that review of that denial cannot adequately be obtained on appeal or by other available means. Thus, we affirm the judgment of the single justice. We note that if we were to treat the trial court action as not being interlocutory, we would also affirm the judgment because the plaintiff would have had an alternative, effective remedy. See Soja v. T.P. Sampson Co., 373 Mass. 630 , 631 (1977), and cases cited.

Judgment affirmed.