Heard: May 1, 2018.
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.
motion to file a late notice of appeal was allowed in the
Appeals Court by Desmond, J.
Tilley, Assistant District Attorney, for the Commonwealth.
Bauer for the defendant.
Present: Kinder, Lemire, & McDonough, JJ.
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.
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.
Motion to dismiss.
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.
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
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.
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