McCormack v. Commonwealth , 345 Mass. 514 ( 1963 )

345 Mass. 514 (1963) 188 N.E.2d 487

JOHN E. McCORMACK
vs.
COMMONWEALTH.

Supreme Judicial Court of Massachusetts, Suffolk.

February 4, 1963. February 28, 1963.

Present: WILKINS, C.J., SPALDING, WHITTEMORE, KIRK, & REARDON, JJ.

Julian Soshnick for the petitioner.

James W. Bailey, Assistant Attorney General, for the Commonwealth.

WHITTEMORE, J.

This petition for writ of error was reserved and reported by a single justice.

On May 8, 1961, the petitioner was indicted on three indictments arising out of the same occurrence and was committed pending trial in default of the bail required under the indictment for possession of burglary tools. No bail was fixed under the other indictments. The petitioner pleaded guilty to the unauthorized use of a motor vehicle and was sentenced to the Massachusetts Correctional Institution at Concord for an indefinite term. The petitioner was found not guilty of the offence for which bail was fixed and the third indictment was filed without a finding. In prior proceedings in the District Court there had been three complaints and bail had been fixed only in the case for possession of burglary tools.

The petitioner contends that under G.L.c. 279, § 33A, as amended through St. 1958, c. 173, the sentencing judge should have ordered that the petitioner "be deemed to have served a portion of said sentence, such portion to be the number of days spent by the prisoner in confinement prior to such sentence awaiting and during trial." We agree that the petitioner was entitled to the benefit of this statute as to time spent in confinement from the time bail was fixed in the District Court under the related complaint. See Stearns, petitioner, 343 Mass. 53 (time spent in mental hospital by insane prisoner awaiting trial is to be credited). Compare Needel, petitioner, 344 Mass. 260 (time spent in confinement pursuant to sentence for an unrelated crime not to be credited). But the petitioner does not show how under the statutes regulating release of prisoners serving an indefinite sentence, or under any procedure of the Parole Board, an order under c. 279, § 33A, would have any effect to shorten his term. See G.L.c. 279, § 32; c. 127, §§ 128-151. Compare G.L.c. 279, § 24; Consolidated Laws of New York "Ann. Penal Law," § 2193. Furthermore, G.L.c. 127, § 129B, as amended through St. 1961, c. 74, provides for the same reduction in sentence "unless the court in imposing such sentence had already deducted therefrom the time during which such prisoner had been confined while awaiting trial." Therefore, if the parole procedure is such that the petitioner's status will be affected by his right to this credit, that section will give him the benefit of it.

It is unnecessary to consider the Commonwealth's contention that the writ of error is not the appropriate remedy.

Judgment affirmed.