456 Mass. 1011

March 25, 2010.

The petitioner, Harry Norton, appeals from a judgment of a single justice of this court denying relief pursuant to G. L. c. 211, § 3. [Note 1] The appeal is before us pursuant to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001). We affirm.

Norton faces multiple criminal charges in the Superior Court. The Commonwealth filed a nolle prosequi with respect to one charge, and Norton thereafter moved to dismiss the remaining charges, alleging that the Commonwealth knowingly presented false and misleading evidence to the grand jury. See Commonwealth v. O'Dell, 392 Mass. 445 (1984). A Superior Court judge declined to dismiss the remaining charges, and dismissed the motion as moot, reasoning that the allegedly false and misleading evidence pertained only to the charge that already had been nol prossed. Norton then filed his petition in the county court seeking review of the Superior Court judge's ruling.

The single justice properly denied relief. A trial court order denying, or in this case dismissing as moot, a motion to dismiss in a criminal case, is not appealable until after trial, and (subject to certain exceptions not applicable here), G. L. c. 211, § 3, may not be used to circumvent that rule. Ventresco v. Commonwealth, 409 Mass. 82 , 83 (1991). "Unless a single justice decides the matter on the merits or reserves and reports it to the full court, neither of which occurred here, a defendant cannot receive review under G. L. c. 211, § 3, from the denial of his motion to dismiss." Jackson v. Commonwealth, 437 Mass. 1008 , 1009 (2002), and cases cited.

Judgment affirmed.

Page 1012

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

Harry Norton, pro se.


[Note 1] In the county court, the petitioner also filed a request to compel certain action by the Superior Court judge. The single justice ruled that the request had become moot, and the petitioner does not challenge that ruling on appeal.