Home KEVIN V. NOBLE vs. COMMONWEALTH

434 Mass. 1001

April 24, 2001

Kevin V. Noble (petitioner) appeals under S.J.C. Rule 2:21, 421 Mass. 1303 (1995), from the denial of relief by a single justice of this court. The petitioner had brought, pro se, a petition for a review of a bail determination, or for relief pursuant to G. L. c. 211, s. 3. Two Superior Court judges had ordered that the petitioner be held without bail.

Rule 2:21 (1) requires that the notice of appeal be filed within seven days of the entry of the judgment, unless the court otherwise orders. The petitioner states in his memorandum filed pursuant to rule 2:21, that the single justice denied the petition on July 28, 2000, and that he "timely appealed." The judgment at issue was entered on July 28, 2000; and the petitioner's notice of appeal (dated August 15 [Note 1]) was received and docketed on August 25, well beyond the time allowed under the rule. The docket does not indicate that the court adjusted the time for the filing of the notice of appeal.

Appeal dismissed.

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

Stephen J. Weymouth for the petitioner.


FOOTNOTES

[Note 1] Significantly after August 4, 2000, the date he asserts he learned of the judgment.

Home SUZANNE CRONIN vs. COMMONWEALTH

434 Mass. 1001

April 24, 2001

Suzanne Cronin (petitioner), who sought relief following a District Court judge's denial of a motion to dismiss and of the denial of a motion for reconsideration, now seeks review by the full court of a single justice's denial of relief under G. L. c. 211, s. 3. We affirm the judgment of the single justice.

The petitioner, who seeks to appeal under S.J.C. Rule 2:21, 421 Mass. 1303 (1995), based her motion to dismiss on challenges to the actions, and alleged failure to act, of the State police in conjunction with her arrest. A defendant may not appeal from the denial of a motion to dismiss pursuant to Mass. R. Crim. P. 13, 378 Mass. 871 (1979), until after trial. Ventresco v. Commonwealth, 409 Mass. 82 , 83-84 (1991). Moreover, the single justice did not decide the issue or report the matter and did not determine that the denial of the motions met the standard set out in Morrissette v. Commonwealth, 380 Mass. 197 , 198 (1980) (substantial claim of violation of substantive rights and irremediable error). See Ventresco v. Commonwealth, supra at 83. "General

Page 1002

Laws c. 211, s. 3, is not a substitute for normal appellate review of interlocutory orders." Id. at 83-84.

Furthermore, the petitioner has not set forth, as rule 2:21 (2) requires, reasons why she may not adequately obtain review of the District Court judge's decision on appeal or by other means. The petitioner contends her situation is comparable to that of one who argues that, because of double jeopardy principles, she should not be tried a second time. Her assertions regarding alleged deficiencies in the arrest, booking, and citation issuing procedures neither meet the requirement of rule 2:21 (2), nor match the command that one should not be tried a second time.

Judgment affirmed.

H. Brooks Whelan, Jr, for the petitioner.