Home DUNE E. FARLEY vs. COMMONWEALTH

433 Mass. 1004

December 13, 2000

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

Greg T Schubert for the petitioner.

Diane E. Farley (petitioner) purports to appeal pursuant to S.J.C. Rule 2:21, 421 Mass. 1303 (1995), from the denial by a single justice of this court of a petition for relief under G. L. c. 211, s. 3. The petitioner had sought a modification of the conditions of bail set by a Superior Court judge.

Rule 2:21 (1) requires that the notice of appeal be filed with the clerk of the county court within seven days of the entry of the judgment appealed from, unless the court otherwise orders. The judgment at issue was entered on September 22, 2000, and the notice of appeal was filed on October 2. As a result we dismiss the appeal.

Nevertheless, if we were to consider the appeal and treat the Superior Court judge's bail determination as an interlocutory order for purposes of rule 2:21 (1), we would affirm the judgment of the single justice. The provisions of G. L. c. 276, s. 58, do not apply to a defendant charged with murder in the first degree. See Abrams v. Commonwealth, 391 Mass. 1019 (1984), citing Commonwealth v. Flaherty, 384 Mass. 802 (1981). As a result, the question of bail for the petitioner is a matter of discretion. Abrams v. Commonwealth, supra at 1019-1020, citing Commonwealth v. Carrion, 370 Mass. 408 , 410-411 (1976). The petitioner does not claim any abuse of discretion.

Appeal dismissed.

Home DONALD FRYE vs. LAURENCE DUCOMB & another [Note 1]

433 Mass. 1004

December 13, 2000

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

Donald Frye, pro se.

Donald Frye (petitioner) purports to appeal pursuant to S.J.C. Rule 2:21, 421 Mass. 1303 (1995), from the denial of his request for relief, from a single justice of this court, under G. L. c. 211, s.s. 3 and 4A. He sought to have the single justice require that the Superior Court hold a prompt hearing on certain pending motions. The single justice also denied the petitioner's request for reconsideration.

Page 1005

The petitioner has not identified an interlocutory ruling of the trial court which he challenges. Rule 2:21, therefore, does not apply. When a petitioner seeks to appeal pursuant to rule 2:21 and we determine that the rule does not apply because no interlocutory ruling of the trial court has been identified, we usually authorize the petitioner to pursue the appeal from the judgment of the single justice according to the regular appellate process. We do not do so in this instance, in the interest of promoting judicial economy, because we conclude that the petitioner could not show that he had no adequate and effective avenue of relief other than G. L. c. 211, s. 3. See Semedo v. Commonwealth, 429 Mass. 1006 (1999); Matthews v. D'Arcy, 425 Mass. 1021 , 1022 (1997); Martineau v. Department of Correction, 423 Mass. 1007 (1996); Callahan v. Superior Court, 410 Mass. 1001 (1991). See also Zatsky v. Zatsky, 36 Mass. App. Ct. 7 , 12-13 (1994). We also note that the petitioner did not state, in his request for relief under G. L. c. 211, s.s. 3 and 4A, that he did not have any other appropriate avenue of relief.

We conclude, therefore, that the single justice neither abused his discretion nor committed a clear error of law. See Semedo v. Commonwealth, supra at 1007.

Judgment affirmed.


FOOTNOTES

[Note 1] Claudia Baldassano.