COMMONWEALTH vs. LOUIS D. ALEXANDER.

COMMONWEALTH vs. LOUIS D. ALEXANDER.

4 Mass. App. Ct. 212

October 15, 1975 - March 30, 1976

Bristol County

Present: HALE, C.J., KEVILLE, & ARMSTRONG, JJ.

A motion by an incarcerated defendant for a speedy trial in which he invoked the provisions of G. L. c. 277, Section 72A, was to be treated as an application for a speedy trial under Section 72A. [213-214]

The fact that a defendant who had moved for a speedy trial pursuant to G. L. c. 277, Section 72A, was not brought to trial for eleven months following his motion required dismissal of the indictment. [214-215]

INDICTMENT found and returned in the Superior Court on March 3, 1971.

A pre-trial motion was heard by Taveira, J., and the case was tried before Chmielinski, J.

Lois M. Lewis for the defendant.

Walter P. Faria, Assistant District Attorney, for the Commonwealth.

ARMSTRONG, J. The defendant was indicted for rape on March 3, 1971, and (after a delay caused by his flight from Massachusetts) pleaded not guilty on August 23, 1972. On November 21, 1972, he was sentenced to a State correctional institution on unrelated charges. On March 6, 1973, while serving that term, he filed a motion (invoking both the Federal and State Constitutions and G. L. c. 277, Section 72A) for speedy trial on the rape indictment, or, in the alternative, for dismissal thereof. The motion was accompanied by a certificate of service stating that a copy of the motion had been sent to the district attorney.

The docket contains no further entries until January, 1974, when the motion was set down for hearing, and process issued to obtain the defendant's presence in court at that time. The hearing took place on February 6, 1974, and counsel for the defendant (present counsel) argued,

Page 213

citing Commonwealth v. Gove, 1 Mass. App. Ct. 614 (1973), [Note 1] that Section 72A required dismissal due to the failure to bring the defendant into court within six months of his motion for speedy trial.

On April 11, 1974, the motion was denied and the case was scheduled for a June trial. Due to the defendant's illness in June, the case was continued to November, 1974, and the defendant was then tried and convicted. In this appeal he assigns as error several matters, of which it is necessary to discuss only the denial of the motion for speedy trial.

The first question is whether the defendant's motion for speedy trial is to be treated as if it were an application under Section 72A. The application which Section 72A contemplates is forwarded to the court by the Commissioner of Correction, along with a certificate by the Commissioner describing the applicant's penal status. The Commissioner is also required to notify the appropriate district attorney. The burden thereafter is on the Commonwealth to ensure that the applicant is brought before the court for trial or other disposition within six months from the filing of the application in court. Commonwealth v. Gove, 1 Mass. App. Ct. at 619 (1973). In this respect a motion for speedy trial could be thought to differ in legal consequence from a Section 72A application, because the mere filing of such a motion is normally regarded as only preliminary to the definitive step of presenting it to a judge. Commonwealth v. Marsh, 354 Mass. 713 , 716-718 (1968). [Note 2] Commonwealth v. Lauria, 359 Mass. 168 , 170 (1971).

Page 214

We do not feel that that distinction can appropriately be made the ground of decision in this case, for these reasons. First, the motion specifically asserted that it sought a speedy trial under Section 72A. Second, a certificate of service, not questioned by the Commonwealth, indicates that a copy of the motion was sent to the district attorney, thus giving the Commonwealth notice of the claim. [Note 3] Third, and most important, we do not feel justified in deviating from the statement of the Supreme Judicial Court in Commonwealth v. Boyd, 367 Mass. 169 , 177 (1975), that "in the absence [as in the present case] of an indication that the defendant was given notice of his right to apply, as required by the statute, we treat the motion for a speedy trial as satisfying the application requirement."

Because the motion in this case must be treated as an application under Section 72A, we are left with a case like Commonwealth v. Gove, supra, where more than six months from the filing of the application went by without the defendant's having been brought into court for trial or other disposition, as required by Section 72A (contrast Commonwealth v. Daggett, 369 Mass. 790 , 792 [1976]) and where no order of the court extending the time for trial or other disposition was entered within the statutory six months (contrast Commonwealth v. Loftis, 361 Mass. 545 , 548-549 [1972], Commonwealth v. Daggett, 369 Mass. 790 , 793-794 [1976], and Commonwealth v. Carr, 3 Mass. App. Ct. 654 , 657 [1975]). The defendant did not seek or assent to any continuance during the six-month period (contrast Commonwealth v. Daggett, at 793; Commonwealth v. Carr, at 656-657). Nor was any part of the delay during the eleven months following the filing of the application caused by the defendant or for his benefit (contrast Commonwealth

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v. Loftis, at 549-550; Commonwealth v. Boyd, 367 Mass. 169 , 178-179 [1975]).

The Commonwealth's argument concerning the lack of prejudice to the defendant is not material, as was held in Commonwealth v. Gove, 1 Mass. App. Ct. at 619, nor are the differences in length of delay between that case (fifteen months) and this (eleven months). Following the mandate of Section 72A, as previously interpreted and applied by this court [Note 4] in Commonwealth v. Gove, we have no choice but to rule that the charge of rape against the defendant should have been dismissed.

Judgment reversed, verdict set aside, order to be entered dismissing indictment.

FOOTNOTES

[Note 1] S.C. 366 Mass. 351 (1974).

[Note 2] Note, however, the statement at 717, fn. 5: "That less [than presentation of the motion to a judge] may be sufficient if the defendant is without counsel is implicit in Commonwealth v. Needel, 349 Mass. 580 [1965]." The motion in the present case was filed by the defendant pro se, and although the defendant had been represented by counsel at and shortly after arraignment, the defendant's brief asserts that he was without counsel when the motion was filed. The docket entries do not indicate a withdrawal of counsel, but new counsel appeared for the defendant on May 21, 1973, and present counsel appeared on January 29, 1974.

[Note 3] We attribute no significance to the absence of a certificate concerning the penal status of the defendant, which would have accompanied a Section 72A application, as the only purpose which seems to be served by such a certificate is to advise the district attorney and the court of any possibility that the defendant might be released from custody in the near future. The Supreme Judicial Court in the Boyd case (see text, infra), apparently attributed no significance to the absence of such a certificate.

[Note 4] This aspect of our decision in the Gove case was not reviewed by the Supreme Judicial Court due to the fact that the Commonwealth did not seek further appellate review. See Commonwealth v. Boyd, 367 Mass. 169 , 179, fn. 1 (1975).