December 19, 2008

• Steven Topazio wrote this April 26, 2014 at 2:25 pm

The defendant was convicted on June 20, 1989 out of the Dorchester District Court docket # 8907CR4991 and received a one year committed sentence under the old trial de novo system. Under the trial de novo system a defendant could try his case before a judge without a jury and if he was not satisfied with the results he could appeal his case to the jury session for a jury trial. The trial de novo system allowed a defendant the right to try his case twice or have two bites at the apple. The defendant exercised his de novo right to appeal to the jury session and entered his appeal in the BMC Jury-of –Six session when he appeared in the BMC. The defendant however thereafter defaulted and never had his jury trial. The Commonwealth moved pursuant to M.G.L. ch. 278 § 24 to vacate the defendant’s appeal and to impose the lower court sentence when the defendant appeared in October of 2008 to remove the default. The defendant who was held on bail hired Attorney Topazio. Attorney Topazio filed a Motion to Oppose the Commonwealth’s Request to Impose Lower Court Sentence. Attorney Topazio argued that since the defendant appeared in the jury session then he entered or perfected his appeal as required by statute and that any default thereafter should be treated as a default in the normal course and not as a solid default requiring the lower court sentence to be imposed. Although the trial de novo system ended in the early 1990s, Attorney Topazio successfully utilized the case of Commonwealth v. Coughlin, 364 N.E.2d 210 (1977) which indicated that decisions to declare a defendant in default on his appeal for trial de novo, or to lift such a default, should normally be left to the discretion of the judge on the scene. Despite the Commonwealth’s opposition and demands to impose the lower court sentence, Attorney Topazio persuaded the Court as a compromise to impose the lower court sentence “nunc por tunc” as of June 20, 1989 and deem the defendant’s sentence served, effectively ending the case. The term “nunc pro tunc” is Latin meaning “now for then.” Attorney Topazio was successful in convincing the Court not to incarcerate his client but to deem that sentence served, effectively ending the case in his client’s favor.