McClain v. Commonwealth , 421 Mass. 1005 ( 1995 )

In 1976, Donald J. McClain (defendant) pleaded guilty to breaking and entering a dwelling house in the nighttime and committing a felony therein. Also, in 1976, the defendant pleaded guilty to escaping from prison. The defendant instituted no postconviction proceedings or appeals relative to those convictions until he moved for a new trial in May, 1994. In February, 1995, he filed motions for release from unlawful restraint and for an evidentiary hearing. Those motions were denied as was a motion to reconsider. The defendant did not appeal.

In March, 1995, the defendant filed in this court a petition for relief under G. L. c. 211, § 3 (1994 ed.). A single justice denied the petition. The defendant appealed. The Commonwealth has moved to dismiss the appeal. The Commonwealth’s motion is allowed. Relief under c. 211, § 3, could have and should have been raised by timely appeal from the rulings in the trial court.

Appeal dismissed.