Massachusetts Superior Court Standing Order 4-81: Pending Criminal Cases Subject To Dismissal Pursuant To The Provisions Of Mass.R.Crim.P. 36
Applicable to All Counties Except County of Dukes and Nantucket. Rescinded effective October 4, 2010.
As of July 1, 1981, Mass.R.Crim.P. 36(b) and (b)(1)(C) and (D) provide (with the detailed exclusions set forth in subdivision (b][2]) that:
(1) As to defendants arraigned prior to July 1, 1979, they shall be tried before July 1, 1981;
(2) As to defendants in whose cases the return day occurred between July 1, 1979, and June 30, 1980, they shall be tried within 24 months after the return day;
(3) As to defendants in whose cases the return day occurred between July 1, 1980, and June 30, 1981, they shall be tried within 18 months after the return day;
(4) As to defendants in whose cases the return day occurs on or after July
1, 1981, they shall be tried within 12 months after the return day.
"Return day" is defined in rule 2(b)(15) as "the day upon which a defendant is ordered by summons to first appear, or, if under arrest, does first appear, before a court to answer the charges against him, whichever is earlier."
It is further provided that, if a defendant is not brought to trial within the time limits of the rule, as extended by subdivision (b)(2), he/she shall be entitled to a dismissal of the charges.
A review of the Case Status Reports which have been submitted to the office of the Administrative Justice for the Superior Court Department pursuant to Mass.R.Crim.P. 36(f)(2)(C), indicates that, system-wide, there is at present a significant number of criminal indictments pending in which a defendant who was arraigned before July 1, 1979, or whose return day occurred after July 1, 1979 will, upon motion, be entitled to a dismissal of the charges for failure to have accorded him/her a speedy trial pursuant to the requirements of rule 36 as set forth in (1) and (2), above, and in which cases the district attorney does not intend to carry on the prosecution by trial but is unwilling to dismiss a pending indictment in the absence of a motion therefor by a defendant.
Accordingly, in order periodically and on a regular basis to determine and to dispose of those criminal cases in which a dismissal appears to be in order pursuant to the provisions of Mass.R.Crim.P. 29, it is hereby ORDERED:
1. That, in each county except the County of Dukes and Nantucket, and with the additional exception of Suffolk County, the Regional Administrative Justice (RAJ) whose region includes such county shall (after appropriate consultation with the District Attorney, the Clerk-Magistrate for each county within the Region, the Chief Probation Officer, and with such other persons and organizations as the RAJ shall desire to consult) schedule and arrange for the call of all criminal matters in which it appears that (a) upon motion the defendant is entitled to a dismissal under the rule for lack of a speedy trial and (b) the indictment has been pending so long that it appears that there is no reasonable probability that a trial is intended or still permissible within the time-frame of rule 36. The RAJ shall set the time for the call of such cases in each county and shall assign either a justice of the Superior Court or a Special Magistrate (under the provisions of Mass.R.Crim.P. 47) to determine whether such cases should be dismissed, scheduled for prompt trial, or other appropriate disposition made. Such call shall be held at least twice in each twelve-month period.
2. That in Suffolk County a similar call of rule 36 cases shall be scheduled and held after consultation among the Chief Justice, the RAJ for Region I, functioning as Criminal Case Coordinator, the District Attorney, the Chief Probation Officer, and the Clerk-Magistrate (Criminal) for Suffolk Superior Court.
3. Each RAJ shall advise the Chief Justice of the results of each such rule 36 status call.
Adopted July 31, 1981. Amended August 25, 1988, effective October 1, 1988.