Home CHARLES M. MIRRIONE, trustee, [Note 1] vs. MICHAEL JACOBS & others. [Note 2]

446 Mass. 1001

February 13, 2006

The petitioner, Charles M. Mirrione, appeals from the denial of his petition under G. L. c. 211, § 3, by a single justice of this court. We affirm.

Mirrione is a defendant in a civil action pending in the Superior Court in which Michael Jacobs, Gerald Wine, and Seamus Kelly (plaintiffs) are challenging the issuance of a special permit and definitive subdivision approval. Pursuant to G. L. c. 40A, § 17, Mirrione moved in the Superior Court for an order requiring each plaintiff to post a cash or surety bond to secure court costs. The Superior Court judge denied the motions. A single justice of the Appeals Court denied Mirrione's petition for relief under G. L. c. 231, § 118, first par. Mirrione's G. L. c. 211, § 3, petition was subsequently denied.

Mirrione has filed a memorandum of law and record appendix pursuant to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001). That rule applies where "a single justice denies relief from a challenged interlocutory ruling in the trial court." S.J.C. Rule 2:21 (1), 421 Mass. 1303 (1995). "We consider S.J.C. Rule 2:21 . . . to be applicable here, notwithstanding the effort to obtain relief in the Appeals Court, because the focus of the petition under G. L. c. 211, § 3, is on the action of the trial court." Picciotto v. Zabin (No. 1), 433 Mass. 1006 , 1007 n.3 (2001). Mirrione must show that "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." S.J.C. Rule 2:21 (2). This he cannot do. Mirrione has obtained review of the Superior Court judge's ruling under G. L. c. 231, § 118. "Review under G. L. c. 211, § 3, does not lie where review under [G. L.] c. 231, § 118, would suffice." Greco v. Plymouth Sav. Bank, 423 Mass. 1019 , 1019-1020 (1996).

Judgment affirmed.

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

Edmund A. Allcock for Charles M. Mirrione.


FOOTNOTES

[Note 1] Of the Hunter's Ridge Realty Trust.

[Note 2] Gerald Wine and Seamus Kelly.

Home ROBERT ALDRICH VS. COMMONWEALTH

446 Mass. 1001

February 14, 2006

Supreme Judicial Court, Appeal from order of single justice.

Page 1002

Robert Aldrich appeals from a judgment of a single justice of this court denying his petition for relief pursuant to G. L. c. 211, s 3. We affirm.

Aldrich was charged with various criminal offenses in the District Court. Following several continuances, Aldrich moved to dismiss the complaint, claiming a violation of his right to a speedy trial. Before the motion was ruled on, Aldrich was indicted for the same offenses and the Commonwealth entered a nolle prosequi in the District Court. Aldrich moved to dismiss the indictments, claiming that when the charges were pending in the District Court, the prosecutor had violated G. L. c. 276, s 35, and Aldrich's speedy trial rights, and that the prosecutor had breached a promise not to proceed by indictment. A judge in the Superior Court denied the motion. Aldrich unsuccessfully sought relief from that order pursuant to G. L. c. 211, s 3. Thereafter, trial took place in the Superior Court and Aldrich was found guilty of most of the charges. Aldrich filed a timely notice of appeal; his appeal has yet to be entered in the Appeals Court.

The case is now before us pursuant to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001). Because Aldrich can challenge the Superior Court judge's denial of his motion to dismiss in his direct appeal from his convictions, he has not shown, as required by rule 2:21, that review of the trial court decision cannot adequately be obtained on appeal. See, e.g., Commonwealth v. Spaulding, 411 Mass. 503 (1992) (ordering dismissal of indictments on speedy trial ground on postconviction appeal). Review of speedy trial claims is not available as a matter of right interlocutorily pursuant to G. L. c. 211, s 3. See Cousin v. Commonwealth, 442 Mass. 1046 (2004); Esteves v. Commonwealth, 434 Mass. 1003 (2001).

To the extent that Aldrich suggests he lacks an adequate alternative remedy because there was no final judgment in the District Court from which he could appeal (because the prosecutor entered a nolle prosequi), his claim is misplaced. In his G. L. c. 211, s 3, petition he challenged the Superior Court judge's denial of his motion to dismiss the indictments on the ground that the prosecutor had failed to try the case in a timely manner in the District Court. That the District Court charges were the subject of a nolle prosequi did not prevent Aldrich from raising his speedy trial claims, as he did, in his motion to dismiss the Superior Court indictments. The Superior Court judge fully ad-dressed that claim on the merits. While the Superior Court judge ultimately denied Aldrich's motion, Aldrich can, as explained above, challenge that ruling on direct appeal.

Judgment affirmed.

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

Robert Aldrich, pro se.