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04/05/78 COMMONWEALTH v. THOMAS E. FRANCIS

April 5, 1978

COMMONWEALTH
v.
THOMAS E. FRANCIS



Worcester. Complaints received and sworn to in the District Court of Fitchburg on March 8, 1976, and March 12, 1976. On appeal to the Superior Court, sentences were imposed by Meagher, J., following default by the defendant. The Supreme Judicial Court granted a request for direct appellate review.

Hennessey, C.j., Quirico, Braucher, Kaplan, & Abrams, JJ.

SYLLABUS BY THE COURT

Practice, Criminal, Appeal to Superior Court, Default, Jury trial. Constitutional Law, Trial by jury. Waiver.

The opinion of the court was delivered by: Quirico

A Judge did not err in imposing a sentence on a defendant under G. L. c. 278, § 24, and denying the defendant's motion to revoke the sentence on the ground that he had not received notice to appear where the lack of receipt of notice was due to the defendant's own neglect in not informing the clerk of his change of address. [753-754]

Suggested procedures for avoiding the default of a defendant under G. L. c. 278, § 24, in circumstances where the defendant's change of address subsequent to an appeal from a conviction in a District Court may result in his failure to receive notice to appear in the Superior Court. [754]

General Laws c. 278, § 24, does not deprive a defendant of his constitutional right to trial by jury but merely imposes a reasonable limitation on the exercise of such right. [755-757]

A defendant who failed to appear in the Superior Court for trial of cases he had appealed as a result of his own neglect in not informing the clerk's office of his change of address was deemed to have waived his right to trial by jury. [757-759]

This is the second of three cases decided today in which we are concerned with G. L. c. 278, § 24, which authorizes the entry of default and imposition of sentence on a defendant, who, having entered an appeal from a conviction in a District Court, fails to appear for trial in the Superior Court. This case, however, presents a somewhat different factual and substantive posture from the first one, viz., that of Commonwealth v. Bartlett, ante 744 (1978).

On May 12, 1976, the defendant, Thomas E. Francis, was found guilty in the District Court of Fitchburg on four complaints charging breaking and entering a dwelling house in the daytime with intent to commit larceny therein, illegally attaching number plates to a motor vehicle, operating an unregistered motor vehicle, and operating an uninsured motor vehicle. He was sentenced to a term of one year in a house of correction on the breaking and entering charge, and ordered to pay fines on the motor vehicle violations. He claimed an appeal to the Superior Court in Worcester County for trial de novo on all the cases.

On June 2, the clerk of the Superior Court issued notice of a pre-trial conference which ordered the defendant to appear in court on June 16. The notice was mailed to the defendant at "41 Beech St. Fitchburg, Ma.," which was his address at the time of his arrest on the District Court complaints and his address as it appeared on the records of the clerk of the Superior Court. The notice was returned to the court by the postal service on June 10, unopened, and marked "not forwardable -- undeliverable as addressed." On September 10, the clerk issued a summons, addressed to the defendant, describing him as of "41 Beech St., Fitchburg, Mass.," and directing him to appear in court for trial on September 22. On September 11, the summons was returned without service, and with the statement by a police officer noted thereon that there was "no such street address" and that the defendant's "last known address Merriam Avenue, Leominster."

At the call of the list on September 22, the defendant did not appear, and was defaulted by a Judge of the Superior Court who, acting pursuant to G.L. c. 278, § 24 (a), imposed the sentences that had been given in the District Court, and (b) ordered the issuance of a capias for the defendant's arrest.

The defendant was arrested on the capias and appeared in the Superior Court on November 12, at which time counsel was appointed to represent him. On the same date, the defendant filed a motion to revoke sentence and an affidavit in support thereof, alleging that he had not received the notice to appear in the Superior Court on September 22, that such notice had been returned as undeliverable, and that he had moved from 41 Beech Street, Fitchburg, the address to which the notice had been mailed. At the hearing on the motion, evidence was introduced that notwithstanding the notation of the police officer on the summons to the effect that there was "no such street address" as 41 Beech Street, Fitchburg, there was indeed such an address and that the defendant was living there at the time of his arrest. Evidence was also introduced that prior to living at 41 Beech Street, Fitchburg, the defendant had lived at Merriam Street in Leominster, and that two weeks after his arrest he had moved from Beech Street to 126 Myrtle Avenue, Fitchburg.

The motion to revoke sentence was denied and the defendant excepted. *fn1 The cases are before us on the defendant's consolidated substitute bill of exceptions. They were entered in the Appeals Court and are now before this court as the result of our allowance of the defendant's application for direct ...


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