DocketNumber: No. 04-P-1188
Citation Numbers: 63 Mass. App. Ct. 909
Filed Date: 4/28/2005
Status: Precedential
Modified Date: 6/25/2022
In January of 2001, two simultaneous proceedings involving the defendant were conducted: a probation surrender hearing and, on the same evidence, a jury trial on new indictments on the charges of armed assault with intent to rob, G. L. c. 265, § 18(b); possession of a firearm without a license, second and subsequent offense, G. L. c. 269, § 10(a); and possession of ammunition without a firearm identification card, G. L. c. 269, § 10(h). The defendant was found guilty of all charges and was sentenced. The judge also entertained argument on the disposition of the probationary matter and, based upon the guilty verdict, revoked the defendant’s probation and imposed sentences.
The defendant appealed from the new convictions, but did not appeal from the revocation of probation. This court reversed the convictions, holding that the defendant had been unfairly prejudiced by an inability to cross-examine the alleged victim, and that a mistrial should have been declared.
In February of 2004, the defendant filed a pro se motion seeking to “set aside” the probation revocation order. The trial judge, after hearing, allowed the motion, noting that the probation violation was based “[u]pan that finding of guilty” in the assault and firearms case, and finding that “in consideration of the Appeals Court decision and the circumstances under which the probation violation was tried, . . . vacating the finding of a violation is required because justice may not have been done.”
The Commonwealth correctly argues that the defendant’s motion was, in effect, an attempt to appeal the probation revocation and was untimely, and that
The defendant here made no timely appeal or motion for reconsideration of the revocation order.
So ordered.
We note that reversal of the defendant’s new convictions is not dispositive as to the probation violation because the burden of proof in a probation revocation hearing is lower than that in a criminal trial. See Commonwealth v. Holmgren, 421 Mass. 224, 225-226 (1995); Krochta v. Commonwealth, 429 Mass. 711, 718 (1999).
We do not consider an ineffective assistance of counsel claim, as no such claim is before us. Cf. Commonwealth v. Faulkner, 418 Mass. 352, 358 (1994).