Supreme Judicial Court, Superintendence of inferior courts, Appeal from order of single justice. Practice, Criminal, Severance.
Robert Emmett Letendre appeals from a judgment of a single justice of this court denying his petition pursuant to G. L. c. 211, s. 3. We affirm the judgment.
The procedural background of this case is set forth in Cohen v. Commonwealth, ante 1005, 1005 (2007). As described there, a judge in the Superior Court ordered that the offenses charged against Letendre be joined for trial with all the offenses charged against Cohen, who was one of Letendre's two codefendants. The judge also denied Letendre's motion to sever the indictments against him from those against both codefendants. In his petition to the single justice, Letendre argued that the judge abused her discretion by joining unrelated matters over his objection, see Mass. R. Crim. P. 9, 378 Mass. 859 (1979), because the charges against Cohen arose from two separate incidents, each involving a different victim, while the charges against Letendre arose from only one of those incidents. He also argued that he and Cohen will assert mutually antagonistic defenses. The single justice denied relief without a hearing.
Letendre has filed a memorandum and appendix pursuant to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001). That rule requires him to "set forth the reasons why 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). He has not done so. As explained in Cohen v. Commonwealth, supra, adequate relief from the trial judge's ruling, if warranted, could be obtained on appeal from any conviction. The single justice did not abuse his discretion or commit other error of law by denying relief under G. L. c. 211, s. 3.
The case was submitted on the papers filed, accompanied by a memorandum of law.
Joseph F. Krowski for the plaintiff.
Board of Registration in Medicine. Supreme Judicial Court, Appeal from order of single justice. Practice, Civil, Complaint. Administrative Law, Judicial review. Jurisdiction, Judicial review of administrative action.
David Maitland, a physician whose medical license was suspended by the Board of Registration in Medicine (board), appeals from a decision of a single justice of this court denying his motion for leave to file a complaint for judicial review of the suspension late and ordering that the case be dismissed.
We conclude that the single justice neither abused his discretion nor otherwise erred.
The board issued its final decision and order suspending Maitland's license on June 1, 2005. Although the board informed Maitland of his appellate rights under G. L. c. 30A, s.s. 14 and 15, and G. L. c. 112, s. 64, Maitland failed to file his complaint for judicial review within thirty days, as required by G. L. c. 30A, s. 14 (1). See Friedman v. Board of Registration in Med., 414 Mass. 663 , 664-665 & n.1 (1993). Although Maitland acknowledges that the statutory deadline is "jurisdictional" and "not susceptible to extension except in limited circumstances as provided in the statute [not applicable here]," Fried-man v. Board of Registration in Med., supra at 666; accord Ramaseshu v. Board of Registration in Med., 441 Mass. 1006 , 1006-1007 (2004), he nonetheless seeks an extension to file his complaint. He argues that the single justice had the authority to extend the deadline pursuant to Mass. R. A. P. 14 (b), as amended, 378 Mass. 939 (1979), and that the single justice should have done so because the delay in filing the complaint was attributable not to Maitland but to Maitland's counsel, and because Maitland's underlying claims of error by the board were meritorious. Contrary to Maitland's suggestion, rule 14 (b) does not allow a judge to alter the requirements of G. L. c. 30A, s. 14 (1). See Friedman v. Board of Registration in Med., supra at 665 (statutory appeal period "cannot be overridden by a contrary rule of court"). Moreover, Maitland's other reasons for seeking to justify an extension do not fall within the "limited circumstances as provided in the statute." Id. at 666. See G. L. c. 30A, s. 14 (1) (extension possible where requested before thirty-day deadline or where timely petition for rehearing sought). [Note 1] The single justice neither abused his discretion nor otherwise erred in denying Maitland's motion for leave to file his complaint late.
The case was submitted on briefs.
Kenneth I. Seiger for the plaintiff.
Amy Spector, Assistant Attorney General, for the defendant.
[Note 1] For the first time on appeal, Maitland seeks to bolster his claims, citing Commonwealth v. Gross, 64 Mass. App. Ct. 829 (2005); Covell v. Department of Social Servs., 42 Mass. App. Ct. 427 (1997); and Board of Appeals of Rockport v. DeCarolis, 32 Mass. App. Ct. 348 (1992). His attempt is, however, unavailing. First, the Appeals Court's Gross decision has been superseded on further appellate review by a decision of this court, and that decision does not support Maitland's cause. Commonwealth v. Gross, 447 Mass. 691 (2006). Second, the portion of the Covell decision that Maitland seeks to rely on is dictum, and, in any event, the facts underlying that dictum are starkly different from the facts here. Covell v. Department of Social Servs., supra at 427-432. Third, the DeCarolis case does not support Maitland's position: there, the claims for judicial review were determined to be time barred under G. L. c. 30A, s. 14, just as Maitland's claim for such review was barred here. Board of Appeals of Rockport v. DeCarolis, supra at 352. Although one claim for declaratory review survived in DeCarolis, see id. at 352-354, no such claim is involved here.