Roullett v. Quincy Division of the District Court Department

We will not reverse the disposition by a single justice of a petition under G. L. c. 211, § 3, absent a showing of abuse of discretion or clear error of law. Doten v. Plymouth Div. of the Probate & Family Court Dept., ante 1001 (1985). Palaza v. Superior Court, 393 Mass. 1001,1002 (1984). Even assuming that Roullett’s version of the facts is supported by the record,1 2 we must affirm the judgment of the single justice because Roullett failed to demonstrate that a petition under G. L. c. 211, § 3, is his only avenue of appeal. Roullett had a right on April 25, 1984, to appeal the sentencing, including the order of restitution, if he was dissatisfied with the final judgment concerning restitution entered on that date. 3 Commonwealth v. Nawn, 394 Mass. 1, 6-7 (1985). It would now appear that on May 7, 1984, Roullett attempted to appeal from the order of restitution entered on April 25, 1984. Apparently, he sought leave to appeal the restitution order without challenging the propriety of the sentence as a whole. This attempt to seek limited review was denied on August 20, 1984. It is not necessary for this court to examine whether the judge’s decision in regard to that appeal was proper because this issue was not raised before the single justice. 4 Even if the judge’s action in denying the motion was incorrect, the *1009 defendant could have appealed from the order denying his motion to appeal. The proper avenue for Roullett to challenge the order denying his motion was by way of appeal, not by way of a petition under G. L. c. 211, § 3. See Soja v. T.P. Sampson Co., 373 Mass. 630, 631-632 (1977).

Martha B. Kleinerman for the plaintiff. Frank J. Ciano for Philip Bellissimo, amicus curiae. Frances L. Robinson, Assistant Attorney General, for the defendant, was present but did not argue.

The judgment of the single justice is affirmed.

So ordered.

We note that counsel for the petitioner stated at oral argument on April 3, 1985, “there ha[ye] been some problems within the Quincy district court in terms of locating all of the tapes involved. ... I am going to be meeting with [a gentleman in the Quincy district court] to make certain that all of those tapes are available to you. . . . Certainly before [April 29, 1985] the tapes will have been transcribed and will be available. . . .” As of July, 1985, the court had yet to receive a transcript of the proceedings below and had received no explanation from counsel of this prolonged delay.

Furthermore, counsel could have moved to revise or revoke the sentence under Mass. R. Crim. P. 29 (a), or moved for a new trial under Mass. R. Crim. P. 30 (b), 378 Mass. 899 & 900 (1979).

Counsel for the petitioner did not rely upon this claim of appeal either at oral argument before the single justice or in the petition.