In Morey v. Commonwealth, 108 Mass. 433, the Supreme Judicial Court of Massachusetts, speaking through Mr. Justice Gray, then a member of that tribunal, held: "A conviction or acquittal upon one indictment is no bar to a subsequent conviction and sentence upon another, unless the evidence required to support a conviction upon one of them would have been sufficient to warrant a conviction upon the other.Summary of this case from Carter v. McClaughry
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from the denial of his motion for credit for ninety-nine days he spent incarcerated in Massachusetts as a result of a warrant issued in unrelated cases by the State of New Hampshire. We affirm.
The motion is entitled 'Motion for Recoupment of Jail Credit.'
A grand jury indicted the defendant on January 16, 2008, for operating under the influence of intoxicating liquor, fifth offense (the OUI charge). He was released on bail, with various conditions, in April, 2008. At about the same time, authorities in New Hampshire issued a probation violation warrant in two unrelated cases. For reasons that are not in the record, approximately one year later, on April 29, 2009, the defendant was taken into custody by Massachusetts authorities on the New Hampshire warrant. After a hearing in the Superior Court, the defendant was held on the New Hampshire warrant. Ninety-nine days later, he was convicted and sentenced to State prison on the OUI charge. Upon learning that the defendant had been sentenced to a term of incarceration on the OUI charge, the authorities in New Hampshire withdrew the warrant, and eventually dismissed the underlying notice of probation violation. As indicated, the defendant then filed a motion seeking ninety-nine days of credit toward his State prison sentence.
The defendant has not provided us with a transcript of the hearing.
The defendant was sentenced to three and one-half to five years of incarceration in State prison.
On appeal, the defendant claims that the judge erred because the ninety-nine day period of confinement constitutes 'dead time' for which he is entitled to receive credit. We disagree. '[A] prisoner is to receive credit for all jail time . . . served before sentencing which relates to the criminal episode for which the prisoner is sentenced.' Commonwealth v. Carter, 10 Mass. App. Ct. 618, 620 (1980). 'However, time spent in custody awaiting trial for one crime generally may not be credited against a sentence for an unrelated crime.' Commonwealth v. Milton, 427 Mass. 18, 24 (1998). '[P]risoners should, where possible, not be required to serve 'dead time,' but have no right to bank time served against future offenses.' Gardner v. Commissioner of Correction, 56 Mass. App. Ct. 31, 38 (2002), quoting from Piggott v. Commissioner of Correction, 40 Mass. App. Ct. 678, 681 (1996). Our cases have consistently held that criminal defendants may not 'bank time' for use against future sentences. See Commonwealth v. Milton, 427 Mass. 18, 25 (1995) ('To allow prisoners to 'bank time' in such a manner would be a matter of great concern, because it could in effect grant prisoners a license to commit future criminal acts with immunity').
'The term 'dead time' refers to time spent in confinement for which no day-to-day credit is given against any sentence.' Commonwealth v. Milton, 427 Mass. 18, 21 n.4 (1998).
Here, even though the ninety-nine days the defendant seeks to apply is 'dead time,' he is not entitled to credit because an allowance of credit in these circumstances would amount to a 'banking' of time against the OUI charge, which is not permitted under the laws. Id. at 24. Furthermore, this is not a case where fairness and common sense dictate that the defendant should receive credit. As the Commonwealth notes in its brief, while the result may seem harsh, the defendant had options that he failed to pursue. Most notably, he could have appeared in New Hampshire once he was released on bail and attempted to resolve the New Hampshire probation violation proceedings.
Order denying motion for recoupment of jail credit affirmed.
By the Court (Katzmann, Vuono & Meade, JJ.),