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424 Mass. 1007

Commonwealth v. Rivera

Massachusetts Supreme Judicial Court

Decided February 7, 1997

Massachusetts Supreme Judicial Court · decided 1997-02-07

Relies on Leaster v. Commonwealth · Commonwealth v. Dunigan · Commonwealth v. Boncore

Good law ✅— No negative treatment on recordhow we know

Decided 1997-02-07

How this case has been cited

Cited by 5 later decisions — most recently July 2010

5 state decisions

30199720002010decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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¶1This matter is not properly before us. As we held in Commonwealth v. Dunigan, 384 Mass. 1, 3-5 (1981), and thereafter in Commonwealth v. Boncore, 412 Mass. 1013, 1014 (1992), no appeal lies from the denial by a single justice of an application for leave to appeal in these circumstances. We stated in those cases that the Commonwealth’s sole remedy would be to file a petition before the full court pursuant to G. L. c. 211, § 3, and we cautioned that we would exercise our power under that statute only in exceptional circumstances. Dunigan, supra at 5. We also made clear in Boncore that we would be unwilling to indulge the Commonwealth in future cases such as this where it follows the wrong procedure. Id. at 1014 n.1.

¶2The Commonwealth’s reference to G. L. c. 211, § 3, in its notice of appeal is not an adequate substitute for a petition properly filed before the full court. While there may be some similarities in the appeal and petition procedures, there are also substantial differences. A petition can be disposed of comparatively quickly, and, unlike an appeal, may be resolved with an order and not necessarily an opinion, and without the need for full briefing and oral argument. The filing of an appeal, as the Commonwealth has done here, effectively negates the single justice’s role as gatekeeper, renders meaningless the rule and statute, and unnecessarily delays the resolution of the matter. Cf. Leaster v. Commonwealth, 385 Mass. 547 (1982) (holding that no appeal lies from a single justice’s order as a gatekeeper pursuant to G. L. c. 278, § 33E). Contrast Commonwealth v. Kuszewski, 385 Mass. 802 (1982) (holding that Commonwealth may appeal to full court after a single justice grants defendant’s application for leave to appeal and orders that motion to suppress be allowed).

¶3 Appeal dismissed.

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