Opinion
October 16, 1981.
Present: Cowdrey, P.J., Forte Banks, JJ.
Motor Vehicle, Minor criminal violations. Practice, Civil, Appellate division: jurisdiction; Draft report.
Report of dismissal of defendant's report. Action heard in the Second District Court of Eastern Middlesex by Doyle, J.
Kevin C. McLean for the plaintiff.
J. Bert Swain for the defendant.
This is an appeal from the dismissal of a draft report after a "civil hearing" following the defendant receiving two minor motor vehicle violation citations.
The chronological history of the events is as follows:
June 29, 1979 defendant issued two minor motor vehicle violation citations.
June 30, 1979 defendant requested a "non-criminal" hearing before clerk/magistrate. Found responsible. Defendant appealed for trial de novo before a judge.
November 2, 1979 defendant requests initial trial by jury. Court orders criminal complaint to issue and forwards, without trial, complaint to six person jury session.
January 23, 1980 Judge in six-person jury session dismisses complaints on the ground criminal complaint should not have issued.
February 6, 1980 District Court issues summons to the defendant for date at which court will hear appeal from Clerk/Magistrate's hearing.
March 24, 1980 Judge hears appeal and finds defendant responsible.
April 3, 1980 defendant filed motions.
April 29, 1980 defendant's motions denied.
May 8, 1980 draft report filed.
May 14, 1980 draft report dismissed on grounds Appellate Division does not have jurisdiction.
May 19, 1980 draft report on dismissal filed.
July 3, 1980 after hearing, Court orders an amended draft report to be filed.
August 8, 1980 amended draft report filed.
August 11, 1980 Report settled.
The appellate division must first concern itself with the issue of its jurisdiction. G.L.c. 231, § 108 created the appellate division" . . . for the rehearing of matters of law arising in civil causes therein. . ." Thus, the appellate division has no jurisdiction in criminal cases.
Whether what follows from the issuance of a minor motor vehicle citation is criminal or civil was answered in Commonwealth v. Germano, Mass. Adv. Sh. (1979) 2537, decided November 23, 1979. There the Court concluded the Legislature in adopting G.L.c. 90, § 20F in St. 1978, c. 478, § 41 "intended to conform the procedure for prosecuting violations under § 20F to that already in effect for the prosecutions of parking violations" Ibid., at page 2545. At pages 2542-2543, it described that procedure as allowing "those charged with parking violations to pursue one of two options: (1) confess the offense charged and pay a specified fine, thus securing a non-criminal disposition, or (2) contest the charges in a criminal proceeding." St. 1934, c. 368, § 1.
In the instant case, the defendant did not avail himself of the non-criminal disposition by confessing the offense charged and paying the maximum fine provided. Therefore, the matter remains criminal and the appellate division has no jurisdiction.
Report dismissed.