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Josh J. v. Commonwealth

Supreme Judicial Court of Massachusetts, Suffolk

January 31, 2018

JOSH J., a juvenile
v.
COMMONWEALTH.

          Heard: October 5, 2017.

         Civil action commenced in the Supreme Judicial Court for the county of Suffolk on January 11, 2017. The case was reported by Lowy, J.

          Eliza Lockhart-Jenks, Committee for Public Counsel Services, for the juvenile.

          Marina Moriarty, Assistant District Attorney, for the Commonwealth.

          Present: Gants, C.J., Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

          LOWY, J.

         This case, here on a reservation and report by a single justice of the county court in response to the juvenile's petition under G. L. c. 211, § 3, requires us to consider the proper application of G. L. c. 276, § 58, and G. L. c. 276, § 58B, specifically with regard to the number of days an individual may be held without bail after a bail revocation hearing. We conclude that where an individual has been released on bail pursuant to G. L. c. 276, § 58, and there is probable cause to believe the individual committed a crime while released on bail, the Commonwealth may seek to revoke bail under either § 58 or § 58B. The judge must then determine whether the Commonwealth satisfied the requirements of the particular statute, either § 58 or § 58B, under which it sought to revoke bail.

         1. Background and prior proceedings.

         On May 6, 2016, a delinquency complaint issued charging the juvenile with breaking and entering in the daytime with intent to commit a felony and larceny over $250. A judge in the Juvenile Court set the juvenile's bail at $1, 000. The judge also advised the juvenile, pursuant to G. L. c. 276, § 58, that the juvenile's bail could be revoked if he committed a new crime while on release. The juvenile posted bail and was released.

         In August, 2016, two delinquency complaints issued against the juvenile for several new crimes he allegedly committed while on release on the pending charges, including two counts of assault and battery on a pregnant victim and one count of malicious destruction of property valued over $250. In November, 2016, based on the new charges, the Commonwealth sought to revoke the juvenile's bail pursuant to G. L. c. 276, § 58. A Juvenile Court judge allowed the Commonwealth's motion, revoked the juvenile's bail, and set a date for a bail review hearing on January 30, 2017, which amounted to a ninety-day bail revocation.[1]

         By January 10, 2017, the charges stemming from the juvenile's conduct while he was released on bail had been resolved.[2] The juvenile continued to be held on the original charges, however, so he moved to vacate the bail revocation order, but the judge who had revoked bail denied that motion. In response, the juvenile filed an emergency petition with this court pursuant to G. L. c. 211, § 3. After a hearing, the single justice issued an interim order, noting that the issue raised by the juvenile in the petition, which he now presses before the full court, was not raised in the trial court, and concluding that the Juvenile Court judge did not abuse his discretion in refusing to vacate the bail revocation order in these circumstances. One day later, there was a disposition in the underlying delinquency complaint. The single justice subsequently reserved and reported the matter raised in the juvenile's petition to the full court, in order to give the court an opportunity to address the proper application of G. L. c. 276, §§ 58 and 58B, 2. Discussion.

          Although this case is moot, we address the issues raised because, as the single justice noted, they are "fully briefed and raise matters of importance that are likely to arise again, but are unlikely to be capable of appellate review in the normal course before they become moot." Delaney v. Commonwealth, 415 Mass. 490, 492 (1993), quoting Upton, petitioner, 387 Mass. 359, 365 (1982).

         Bail revocation under §§ 58 and 58B.

         The juvenile claims that the judge erred in applying the ninety-day revocation period under G. L. c. 276, § 58B, as opposed to the sixty-day revocation period under G. L. c. 276, § 58, after finding probable cause to believe that the juvenile had committed a crime while released on bail under § 58. The crux of the juvenile's argument is that because bail can be revoked under either § 58 or § 58B, where an individual commits a crime while on release, the statutes create an ambiguous bail revocation framework, and therefore, the rule of lenity requires the application of the sixty-day revocation period under ...


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