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Commonwealth v. Quispe3/16/2001
Suffolk.
January 12, 2001.
Supreme Judicial Court, Superintendence of inferior courts. Motor Vehicle, Operating under the influence. Practice, Criminal , Dismissal. Judge. Constitutional Law, Separation of powers.
Complaint received and sworn to in the Boston Municipal Court Department on February 18, 2000.
A motion to dismiss was heard by Raymond G. Dougan, Jr., J.
Civil action commenced in the Supreme Judicial Court for the county of Suffolk on July 7, 2000.
The case was reported by Greaney, J.
The defendant was charged in the Boston Municipal Court Department with operating a motor vehicle while under the influence of intoxicating liquor, operating a motor vehicle after suspension of his license, and a marked lanes violation. He requested pretrial probation without a change of plea for a period of one year and filed a written motion and an affidavit in support of his request. The Commonwealth objected and requested a hearing.
Following arguments, a judge in the Boston Municipal Court dismissed the charges against the defendant. The Commonwealth filed a notice of appeal pursuant to G. L. c. 278, ? 28E, and a petition for relief under G. L. c. 211, ? 3, and thereafter petitioned a single justice of this court to vacate the judge's order or reserve and report the case to the full court. The single justice reserved and reported the case to the full court. We remand the case to the county court for entry of an order vacating the order of the Boston Municipal Court judge.
1. The judge's findings.
In his written findings, which we set forth in relevant part, the judge determined that the defendant was in fact operating while under the influence of alcohol. He stated that " continuance without a finding after an admission to sufficient facts then dismissal or probation is the disposition or sentence in the Boston Municipal Court for almost all first and second offenders, including [operating while under the influence] offenders." The judge, however, was concerned that such a continuance or admission could subject the defendant to action by the United States Immigration and Naturalization Service (INS), as the defendant is not a United States citizen. The judge indicated that, under current law, "the INS takes no action for a first offense admission or conviction [of operating under the influence]," but he stated that "the effect or consequence for [the defendant] of future INS action for a subsequent conviction or admission to many criminal offenses . . . is significantly disproportionate to those penalties and sanctions for the same crimes imposed by the courts on individuals who are citizens of the United States." He concluded that, because of the potential immigration consequences of an admission (e.g., "deportation, exclusion from the United States or denial of an application for residency or citizenship"), the "interests of public justice" required a dismissal of the complaint. During the hearing, the judge stated that he would continue to dismiss similar cases "until a court specifically, in language that is iron clad, on the record tells me that I don't have the authority."
2. Jurisdiction.
The defendant challenges our jurisdiction to entertain the Commonwealth's appeal under G. L. c. 211, ? 3. General Laws c. 211, ? 3, grants this court "general superintendence of all courts of inferior jurisdiction to correct and prevent errors and abuses therein," but only if no other adequate and effective remedy is available. See Lykus v. Commonwealth, 432 Mass. 160, 161 (2000), quoting Lanoue v. Commonwealth, 427 Mass. 1014, 1015 (1998); Commonwealth v. Jenki
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