BRENDAN McGUINNESS vs. COMMONWEALTH

BRENDAN McGUINNESS vs. COMMONWEALTH

423 Mass. 1003

July 9, 1996

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

Brendan McGuinness, pro se.

Robert C. Cosgrove, Assistant District Attorney, for the Commonwealth.

Brendan McGuinness (defendant) moved to dismiss an indictment charging assault and battery on a correctional officer. The defendant argued that

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he had already been punished for this offense by a thirty-month confinement in a departmental disciplinary unit, and thus criminal prosecution would subject him to double jeopardy. A Superior Court judge denied the defendant's motion, and he requested relief pursuant to G. L. c. 211, s. 3 (1994 ed.). A single justice of this court denied relief, and the defendant appealed, following the procedure stated in S.J.C. Rule 2:21, 421 Mass. 1303 (1995). The denial of the defendant's motion to dismiss is an interlocutory ruling in the Superior Court. Because the motion was based on a double jeopardy claim, appellate review of its denial after trial and conviction would not provide adequate relief if the defendant were to prevail on the double jeopardy issue after trial. Costarelli v. Commonwealth, 374 Mass. 677 , 680 (1978). Cf. Creighton v. Commonwealth, ante 1001 (1996). The defendant may pursue his appeal according to the regular appellate process.

So ordered.