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SJC-11779

                DAVID SOUCY   vs.   COMMONWEALTH.



                         March 6, 2015.



   Supreme Judicial Court, Superintendence of inferior courts.



     David Soucy appeals from a judgment of a single justice of
this court denying his petition for relief under G. L. c. 211,
§ 3. We affirm.

     Soucy was indicted for trafficking in a class B substance
in violation of G. L. c. 94C, § 32E. In moving to dismiss the
indictments, he argued that because the charges concerned
pharmaceutical drugs (oxycodone tablets), the weight
requirements under § 32E should be measured by the weight of the
controlled substance (oxycodone) contained in the tablets, not
by the tablets' total weight, and that there was an insufficient
amount of the controlled substance in the tablets to meet the
statutory weight requirements. His motion was denied by a judge
in the Superior Court. His G. L. c. 211, § 3, petition in the
county court challenged that interlocutory ruling. The single
justice denied relief without a hearing.

     Under S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001),
Soucy is required to "set forth the reasons why review of the
trial court decision cannot adequately be obtained on appeal
from any final adverse judgment in the trial court or by other
available means." He has not done so. If and when he is
convicted on one or more of the indictments, any challenge to
the weight requirements under § 32E or to the sufficiency of the
                                                                  2


evidence in support of those requirements can adequately be
reviewed in the normal appellate process.

     "The denial of a motion to dismiss in a criminal case is
not appealable until after trial, and we have indicated many
times that G. L. c. 211, § 3, may not be used to circumvent that
rule. Unless a single justice decides the matter on the merits
or reserves and reports it to the full court, neither of which
occurred here, a defendant cannot receive review under
G. L. c. 211, § 3, from the denial of his motion to dismiss."
Jackson v. Commonwealth, 437 Mass. 1008, 1009 (2002), and cases
cited. A very limited exception exists where, before a trial or
a retrial, a defendant raises a double jeopardy claim of
substantial merit. Id. See Neverson v. Commonwealth, 406 Mass.
174, 175-176 (1989). But we have consistently rejected attempts
to obtain interlocutory review as a matter of right under G. L.
c. 211, § 3, of denials of motions to dismiss on other bases
that defendants have attempted to analogize to double jeopardy
claims. See, e.g., Grand-Pierre v. Commonwealth, 461 Mass.
1003, 1004 (2011) (challenge to constitutionality of statute
under which defendant was charged); Garden v. Commonwealth, 460
Mass. 1018, 1019 (2011) (statute of limitation claim);
Fitzpatrick v. Commonwealth, 453 Mass. 1014, 1015 (2009)
(jurisdictional claim); Bateman v. Commonwealth, 449 Mass. 1024,
1024-1025 (2007) (challenge to sufficiency of evidence before
grand jury); Cousin v. Commonwealth, 442 Mass. 1046, 1046 (2004)
(speedy trial claim); King v. Commonwealth, 442 Mass. 1043, 1044
(2004) (claim of preindictment delay); Jackson v. Commonwealth,
supra (due process challenge to prosecution). See also 1
Appellate Practice in Massachusetts § 1.5, at 1-14 (Mass. Cont.
Legal Educ. 3d ed. Supp. 2014) ("The exception is based on the
unique nature of the guarantee not to be placed in jeopardy
twice"). There is simply "no case in which we have held that a
. . . claimant [in Soucy's position], like a double jeopardy
claimant, is entitled to review pursuant to G. L. c. 211, § 3."
Jackson v. Commonwealth, supra.

     The single justice neither erred as a matter of law nor
abused his discretion in denying the petition.

                                   Judgment affirmed.

     The case was submitted on the papers filed, accompanied by
a memorandum of law.
     William J. Barabino for the petitioner.
     Elin H. Graydon, Assistant District Attorney, for the
Commonwealth.
