442 Mass. 1003

June 9, 2004

The Commonwealth filed a petition in the county court, pursuant to G. L. c. 211, § 3, challenging the order of a District Court judge -- made after a hearing pursuant to Commonwealth v. Brandano, 359 Mass. 332 (1971), and over the Commonwealth's objection -- to dismiss the assault and battery complaint against Patricia Massenburg following a period of pretrial probation. A single justice reserved and reported the case to the full court. At the time the case was entered in this court, the constitutionality of the procedure outlined in Brandano and relied on by the judge was still an open question. That question has since been resolved. See Commonwealth v. Cheney,

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440 Mass. 568 , 574 (2003) ("judicial power does not extend to authorize a judge to dismiss an otherwise legally adequate indictment, prior to verdict, finding, or plea, in the 'interests of public justice' "); Commonwealth v. Tim T., 437 Mass. 592 (2002) (District Court judge may not, over objection of Commonwealth, order lengthy period of pretrial probation followed by dismissal without satisfying G. L. c. 278, § 18).

There is no merit to the defendant's contention that a judge need not accept all conditions that the Commonwealth attaches to its consent to dismissal of valid charges prior to verdict, finding, or plea. Unless the defendant is willing to accept all conditions and unless the judge imposes all conditions on the defendant, there is no consent by the Commonwealth to dismissal of the charges.

This case is controlled by our decisions in the Tim T. and Cheney cases. Therefore, a judgment shall enter in the county court vacating the District Court judge's order and remanding the case to the District Court for proceedings consistent with this opinion.

So ordered.

Keri Rudolph Brown, Assistant District Attorney, for the Commonwealth.

Robert Harland for the defendant.