429 Mass. 1015

June 16, 1999

This matter arises from the allowance of a motion to dismiss pending criminal charges against the defendant following a finding by a judge at the defendant's earlier probation revocation proceeding that the charges had not been proved by the Commonwealth. The Commonwealth appealed and we granted its application for direct appellate review. The collateral estoppel issue in this case is controlled by Krochta v. Commonwealth, ante 711 (1999), also decided today.

Neither the protection against being twice put in jeopardy nor the principle of collateral estoppel precludes prosecution of a defendant on charges that the Commonwealth failed to prove were committed by the defendant in violation of his probation at an earlier probation revocation proceeding. At his probation revocation proceeding the defendant was not put in jeopardy for the charges, and the difference between the burdens of proof on the common factual issues precludes the application of collateral estoppel between the two proceedings. See id.

Page 1016

The judge in this case allowed the defendant's motion because he felt compelled to do so by a negative implication he drew from our holding in Commonwealth v. Holmgren, 421 Mass. 224 (1995). As we discussed in Krochta, supra, the Holmgren case has broader application than was suggested.

The order dismissing the charges is vacated, and the case is remanded to the District Court for further proceedings consistent with these opinions.

So ordered.

Gail M. McKenna, Assistant District Attorney, for the Commonwealth.

Michael David Fontaine for the defendant.