25 Mass. App. Ct. 1001

Commonwealth vs. Gary George.

No. 87-740.

May 4, 1988.

The docket entries on the only remaining indictment (one for armed robbery) disclose that the defendant was notified of his right to appeal (Mass.R.Crim.P. 28[c], 378 Mass. 898 [1979]) at the time he was sentenced on December 2,1985. They also disclose a timely appeal (later withdrawn) to the Appellate Division of the Superior Court but no appeal to this court within thirty days after imposition of sentence, as required by Mass.R.A.P. 4(b), as appearing in 378 Mass. 929 (1979). On June 23,1986, trial counsel for the defendant filed in the Superior Court, and on August 7, 1986, the trial judge purported to allow, a motion styled as one to “enter appeal late.”1 No notice of appeal was thereafter filed, but the case somehow found its *1002way onto the appellate docket of this court on June 26, 1987. The Commonwealth moved to dismiss the “appeal” as untimely. By that time, the one-year period within which the single justice could have allowed a late appeal (Mass.R.A.P. 14[b], as appearing in 378 Mass. 939 [1979]) had long since expired. The single justice denied the Commonwealth’s motion because she thought it “clear from the allowance of the motion to enter appeal late that the motion was deemed to be a notice of appeal and was and is to be treated as such.” The Commonwealth appealed. We find it unnecessary to decide whether we would agree with the single justice’s interpretation of the defendant’s motion and the order thereon (see Commonwealth v. Bouvier, 399 Mass. 1002, 1003 [1987]; Commonwealth v. Rosberg, ante 949, 950 [1988]) because any notice of appeal which might have been filed by the defendant pursuant to the purported allowance of his motion would have run afoul of the thirty-day time limitation set out in Mass.R.A.P. 4(c), as appearing in 378 Mass. 929 (1979), and would have been a nullity. Commonwealth v. Lopes, 21 Mass. App. Ct. 11,16 (1985). Commonwealth v. Boutwell, 21 Mass. App. Ct. 201, 205 (1985). It follows that the single justice’s interpretation avails the defendant nothing.2

Bruce R. Taub for the defendant.

Robert J. Bender, Assistant District Attorney, for the Commonwealth.

“Appeal" dismissed.

Commonwealth v. George
25 Mass. App. Ct. 1001

Case Details

Name
Commonwealth v. George
Decision Date
May 4, 1988
Citations

25 Mass. App. Ct. 1001

Jurisdiction
Massachusetts

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