Heard: April 11, 2019.
found and returned in the Superior Court Department on
October 1, 2010.
review by the Supreme Judicial Court, 476 Mass. 680 (2017), a
motion for return of property was considered by Timothy Q.
Patrick Levin, Committee for Public Counsel Services, for the
M. Johnson, Assistant District Attorney, for the
Present: Hanlon, Desmond, & Shin, JJ.
single issue in this case is whether, in light of
Commonwealth v. Martinez, 480 Mass. 777 (2018),
Massachusetts is required to reimburse the defendant's
probation service fees paid to the New Hampshire Department
of Corrections after her conviction was overturned in
Massachusetts. Because it was a Massachusetts judge who
issued the order to pay the probation service fees under G.
L. c. 276, § 87A, we conclude that Massachusetts must
bear the burden of reimbursing them to the defendant.
Accordingly, we reverse the order denying the defendant's
motion for the return of probation supervision fees.
underlying facts are undisputed. The defendant, Heather
Dragotta, was convicted in Massachusetts of wantonly or
recklessly permitting another to commit an assault and
battery on a child causing bodily injury. She was sentenced
to two years of incarceration, with two months to serve and
the balance suspended for a five-year probationary term. The
defendant, a resident of New Hampshire, had her probation
supervised in that State,  and she paid "monthly probation
fees" to the New Hampshire Department of
her conviction was overturned by the Supreme Judicial Court,
the defendant filed a motion for return of property in
Superior Court, seeking the reimbursement of $837 in
probation service fees. The judge, without the benefit of
Martinez, denied the request, reasoning that
"[a] probationer receives something of value for
probationary supervision." The defendant timely
the pendency of the appeal, the Supreme Judicial Court held
in Martinez that probation fees must be returned
when a defendant's conviction is overturned:
"Where a judge sentences a defendant to probation on a
single conviction, monthly probation fees ordered under G. L.
c. 276, § 87A, are paid by the defendant as a direct
consequence of that conviction. Therefore, any amount paid by
the defendant is 'taken from [him or] her solely on the
basis of a conviction, ' Nelson[ v.
Colorado], 137 S.Ct. [1249, ] 1257 [(2017)], and must be
returned in full once ...