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Commonwealth v. Kardas

Appeals Court of Massachusetts, Suffolk

July 20, 2018

COMMONWEALTH
v.
JONATHAN W. KARDAS.

          Heard: May 1, 2018.

         Complaint received and sworn to in the Dorchester Division of the Boston Municipal Court Department on July 15, 2016. Dismissal of the complaint was ordered by Lisa A. Grant, J.

         A motion to file a late notice of appeal was allowed in the Appeals Court by Desmond, J.

          Colby Tilley, Assistant District Attorney, for the Commonwealth.

          Max Bauer for the defendant.

          Present: Kinder, Lemire, & McDonough, JJ.

          LEMIRE, J.

         This is an appeal by the Commonwealth from the sua sponte dismissal of a complaint for trespass issued from the Dorchester Division of the Boston Municipal Court (BMC). When the defendant failed to appear for the first pretrial conference on September 21, 2016, the judge asked the prosecutor for the facts of the case. The prosecutor summarized the police report, which indicated the charge was brought on July 15, 2016, after the homeless defendant refused to vacate his friend's residence where he had been staying temporarily. Upon hearing these facts, the judge dismissed the complaint, over the Commonwealth's objection, because the defendant had not "been in any new trouble" in the two months since the incident.

         More than seven months after the dismissal, the Commonwealth submitted a motion to file a late notice of appeal to the single justice of this court; the motion was granted, and the defendant did not appeal therefrom. The Commonwealth argues on appeal that the BMC judge exceeded her constitutional authority when she dismissed the complaint. Rather than submitting a brief, the defendant has taken the unusual step of filing a motion to dismiss the appeal on grounds that the single justice abused his discretion when he allowed the Commonwealth's motion to file a late notice of appeal. We address the propriety of filing a motion to dismiss in the first instance in this court before turning to the merits of the Commonwealth's appeal.

         1. Motion to dismiss.

         In its broadest terms, an appeal is "a legal proceeding by which a case is brought from a lower to a higher court for rehearing." Webster's Third New International Dictionary 103 (2002). To ensure that the appellate process is undertaken with due regard to fairness and the efficient administration of justice, certain guiding principles and procedures have been set in place. See generally Massachusetts Rules of Appellate Procedure; Tisei v. Building Inspector of Marlborough, 3 Mass.App.Ct. 377, 378 (1975) ("The purpose of the Massachusetts Rules of Appellate Procedure is to simplify and expedite appellate procedure"). While these principles clearly encompass the ability to obtain review of an "action of a single justice" in an appellate court, Mass.R.A.P. 15(c), 365 Mass. 859 (1974), they also set forth specific requirements for perfecting that or any appeal.

         An aggrieved party must first file a notice of appeal in the court in which the order or judgment was entered and from which an appeal is being taken. See Mass.R.A.P. 3(a), as amended, 378 Mass. 927 (1979) ("An appeal permitted by law from a lower court shall be taken by filing a notice of appeal with the clerk of the lower court within the time allowed by [Mass.R.A.P. 4, as amended, 430 Mass. 1603 (1999)]"); Mass.R.Crim.P. 15(b)(1), as appearing in 422 Mass. 1501 (1996) (requiring notice of appeal to be filed in trial court before pursuing interlocutory appeal); Commonwealth v. Cowie, 404 Mass. 119, 119-120 (1989) (failure to file notice of appeal results in loss of right to direct appeal).

         An appeal from an order of the single justice is no different. Our rule 2:02 provides that the litigant must proceed in "the same manner as if the single justice were the 'lower court' within the meaning" of the Massachusetts Rules of Appellate Procedure. In other words, a litigant must comply with the Massachusetts Rules of Appellate Procedure, which require the filing of a notice of appeal in the court in which the order or judgment appealed from was entered. See Mass.R.A.P. 3(a). Although there is a notation in rule 2:02 that it is "[a]pplicable to civil cases," rule 2:02 is instructive in criminal cases; its application to criminal cases is consistent with the pervasive requirement that a civil or criminal appeal must proceed from a timely filed notice of appeal.

         In this case, the sole issue raised in the defendant's motion to dismiss concerns the single justice's conclusion that good cause justified the Commonwealth's delay in filing its notice of appeal. To challenge that decision, the defendant should have commenced an appeal by filing a notice of appeal. Because he did not do so, his challenge to the order of the single justice is not properly before this court. See Cowie, 404 Mass. at 119-120 (direct appeal not permitted where notice of appeal not filed within permitted time period); Commonwealth v. Burns, 43 Mass.App.Ct. 263, 266 (1997) (appeal dismissed because notice of appeal was filed fourteen months late, which exceeds one-year time period in which this court can extend time for filing notice of appeal). See also ...


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