This rule was amended June 8, 2016, effective August 1, 2016. 

Use the tabs below to access the rule effective until August 1, 2016 or the rule effective beginning August 1, 2016.

(Applicable to District Court and Superior Court)

(a) Right of Interlocutory Appeal.

(1) Right of Appeal Where Pretrial Motion to Dismiss or for Appropriate Relief Granted. The Commonwealth shall have the right to appeal to the appropriate appellate court a decision by a judge granting a motion to dismiss a complaint or indictment or a motion for appropriate relief made pursuant to the provisions of subdivision (c) of Rule 13 .

(2) Right of Appeal Where Motion to Suppress Evidence Determined. A defendant or the Commonwealth shall have the right and opportunity to apply to a single justice of the Supreme Judicial Court for leave to appeal an order determining a motion to suppress evidence prior to trial. If the single justice determines that the administration of justice would be facilitated, the justice may grant that leave and may hear the appeal or may report it to the full Supreme Judicial Court or to the Appeals Court.

(3) Right of Appeal Where Transfer of Delinquency Proceeding is Denied. The Commonwealth shall have the right to appeal to the Appeals Court a decision by a judge denying transfer of a delinquency proceeding pursuant to G. L. c. 119, § 61.

(4) Probable Cause Hearings. No interlocutory appeal or report may be taken of matters arising out of a probable cause hearing.

(b) Procedural Requirements.

(1) Time for Filing Appeal. An appeal under subdivisions (a)(1) and (a)(3) shall be taken by filing a notice of appeal in the trial court within thirty days of the date of the order being appealed. An application for leave to appeal under subdivision (a)(2) shall be made by filing within ten days of the issuance of notice of the order being appealed, or such additional time as either the trial judge or the single justice of the Supreme Judicial Court shall order, (a) a notice of appeal in the trial court, and (b) an application to the single justice of the Supreme Judicial Court for leave to appeal.

(2) Record. The record for an interlocutory appeal shall be defined and assembled pursuant to Massachusetts Rule of Appellate Procedure 8. The judge shall make all findings of fact relevant to the appeal or the application for leave to appeal within the period specified in subdivision (b)(1) for filing the notice of appeal.

(c) Determination of Motions. Any motion the determination of which may be appealed pursuant to this rule shall be decided by the judge before the defendant is placed in jeopardy under established rules of law.

(d) Costs upon Appeal. If an appeal or application therefor is taken by the Commonwealth, the appellate court, upon the written motion of the defendant supported by affidavit, shall determine and approve the payment to the defendant of his or her costs of appeal together with reasonable attorney's fees to be paid on the order of the trial court upon the entry of the rescript or the denial of the application.

(e) Stay of the Proceedings. If the trial court issues an order which is subject to the interlocutory procedures herein, the trial of the case shall be stayed and the defendant shall not be placed in jeopardy until interlocutory review has been waived or the period specified in subdivision (b)(1) for instituting interlocutory procedures has expired. If an appeal is taken or an application for leave to appeal is granted, the trial shall be stayed pending the entry of a rescript from or an order of the appellate court. If an appeal or application therefor is taken by the Commonwealth, the defendant may be released on personal recognizance during the pendency of the appeal.

Amended April 29, 1986, effective July 1, 1986; amended effective April 14, 1995; March 1, 1996.

Reporter's Notes

This rule is derived from G.L. c. 278, § 28E (as amended) but the statute has been extended to the District Court and in other regards has been significantly altered.

Subdivision (a). This subdivision grants the Commonwealth the right to prosecute an interlocutory appeal where a motion to dismiss has been granted, and where a motion to transfer a delinquency proceeding has been denied. Pursuant to G.L. c. 278, § 28E , the appeal will be had in the Supreme Judicial Court if from a Superior Court order, and in the Appeals Court if from a District Court order. 

Subdivision (a)(2) grants both the defendant and the Commonwealth the right to apply to a Single Justice of the Supreme Judicial Court for leave to appeal a ruling on a motion to suppress evidence, whether the charge is of a felony or misdemeanor. The Commonwealth's interlocutory remedy is predicated upon the fact that an adverse pretrial ruling will, in the case of a motion to dismiss, “preclude a public trial and ... entirely terminate the ... proceedings,” Burke v. Commonwealth , 373 Mass. 157, 161 (1977), or, in the case of a motion to suppress, result in the irretrievable loss of the right to present legal evidence. Commonwealth v. Boswell , 374 Mass. 263, 267 (1978). The defendant is afforded this procedure because in some circumstances interlocutory appeal will conserve judicial resources and spare all parties the ordeal of a trial that would ultimately prove futile. 

Pursuant to former G.L. c. 278, § 28E, the only interlocutory appeal available in a criminal case was from a decision, order, or judgment of the Superior Court allowing a motion to dismiss or to grant appropriate relief or allowing or denying a motion to suppress evidence where the crime charged was a felony. E.g., Whitmarsh v. Commonwealth , 366 Mass. 212, 214 (1974). Subsequently, several developments expanded the availability of this appellate remedy, as reflected in subdivision (a) of the Rule. First, in Rosenberg v. Commonwealth , 372 Mass. 59, 62 (1977), the Supreme Judicial Court endorsed the practice of reporting orders of dismissal of misdemeanor charges in the Superior Court pursuant to former G.L. c. 278, § 30A (St.1954, c. 528). Rule 15(a) merely recognized that an interlocutory appeal is the appropriate vehicle for review of such orders and that the procedure can be of utility in the District Court. Second, although the initial version of the Rule placed certain restrictions on interlocutory appeals from District Court orders, in 1995 subdivisions (a) and (b) were rewritten to apply the Superior Court provisions to District Court appeals, as mandated by the legislation which replaced the de novo trial system with a single trial system. G.L. c. 218, §§ 26A and 27A(g) provide that review in district court jury and jury-waived cases “be had directly by the appeals court, by appeal, report or otherwise in the same manner provided for trials of criminal cases in the Superior Court.” Finally, a 1991 amendment to G.L. c. 278, § 28E afforded the Commonwealth an additional remedy, permitting interlocutory appeal from the denial of its motion to transfer a delinquency proceeding pursuant to G.L. c. 119, § 61. Rule 15(a)(3) reflects this amendment. 

In the District Court, there is to be no interlocutory appeal or report of matters arising out of a probable cause hearing. ([a][4]). 

Subdivision (b). The time within which an interlocutory appeal is to be taken or applied for is set out in subdivision (b)(1). The time limits specified alter former practice. Former G.L. c. 278, § 28E (St.1967, c. 898, § 1) limited this period to ten days after entry of the decision, order, or judgment to be appealed from. When Rule 15 was promulgated, it substituted the requirement that a claim of appeal or application be filed “within a reasonable time” and before the defendant is placed in jeopardy. In 1996, the Rule was changed to provide a thirty day time limit for an appeal by right; and a ten day time limit to file an application for leave to appeal which may be extended by the trial judge if necessary. The amendment was intended to insure that the trial will be stayed for a sufficient period to allow the defendant or the Commonwealth to pursue the remedies afforded by the rule. The amendment also clarifies the appellant's obligation to file a notice of appeal in the trial court even if an application for leave to appeal has not yet been granted, as required by Mass.R.A.P. 4(b) and by Commonwealth v. Guaba , 417 Mass. 746, 751 (1994). 

Although the time limits for invoking the rule's procedures ordinarily commence with the filing of the order being appealed, in Commonwealth v. Lewin (no. 3) , 408 Mass. 147, 150 (1993) the Supreme Judicial Court held that the Commonwealth's failure to file an interlocutory appeal until after disposition of its motion to reconsider did not render the appeal untimely. 

Subdivision (b)(2) requires the trial judge to make any relevant findings of fact within the time allowed to the parties for seeking an interlocutory remedy. The statement of the proceedings should be such that the reviewing court is able to determine that an interlocutory appeal is appropriate, i.e., that interlocutory review “would contribute more to the reasonably prompt disposition of the case than it would to delay.” Commonwealth v. Vaden , 373 Mass. 397, 400 (1977). A 1996 amendment to Rule 15 incorporates by reference the requirements of Massachusetts Rule of Appellate Procedure 8 governing the contents and assembly of the record on appeal. 

Subdivision (c). In order to preserve the Commonwealth's right to appeal, the rule requires that the judge's ruling on the motion be made before the defendant is placed in jeopardy. Otherwise, a dismissal after commencement of trial would bar re-prosecution of the defendant on double jeopardy grounds and render any successful appeal of the dismissal meaningless. See Costarelli v. Commonwealth , 374 Mass. 677 (1978). 

Subdivision (d). This subdivision was drafted to dispel any uncertainty concerning the defendant's right to reimbursement of his or her costs of appeal and attorney's fees. The appellate court is to determine the amount to be paid to the defendant, which payment is to be received from the Commonwealth. See Superior Court Rule 53(7) (1974). In 1995 the Standing Advisory Committee on Criminal Procedure reconsidered several rules concerning the payment of reasonable attorney's fees to insure that they are consistent. In Latimore v. Commonwealth , 417 Mass. 805 (1994), the Commonwealth filed an application for leave to appeal the allowance of the defendant's motion for a new trial under the provisions of G.L. c. 278, § 33E . The application was denied by the single justice and the defendant moved for costs and attorney's fees. Because the application for appeal in a capital case was controlled by section 33E, rather than Rule 30(c)(8)(B), no specific provision for payment of fees and costs was available. The court observed that this situation, while rare, presented an anomaly in the rules. The committee has reconsidered the appropriate rules and has added language to this Rule and to Rule 30 to address the situation where the Commonwealth is making application for leave to appeal and adds directions for payment of fees and costs upon the denial of the application. 

Subdivision (e). Subdivision (e) restates in part former G.L. c. 278, § 28E (St.1967, c. 898, § 1). The first sentence of this subdivision was added in 1996 to insure an adequate opportunity for the defendant and prosecutor to invoke the interlocutory procedures afforded by this rule. The trial must be stayed until the period for seeking an interlocutory remedy has passed, or been waived; and if an appeal is then taken or an application granted, the stay is extended until disposition of the appeal. Former § 28E mandated the release of the defendant on personal recognizance if the appeal was taken on behalf of the Commonwealth; under this rule such release is discretionary.

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(Applicable to District Court and Superior Court)

(a) Right of Interlocutory Appeal. 

(1) Right of Appeal Where Pretrial Motion to Dismiss or for Appropriate Relief Granted. The Commonwealth shall have the right to appeal to the Appeals Court a decision by a judge granting a motion to dismiss a complaint or indictment or a motion for appropriate relief made pursuant to the provisions of Rule 13(c). 

(2) Right of Appeal Where Motion to Suppress Evidence Determined. A defendant or the Commonwealth shall have the right and opportunity to apply to a single justice of the Supreme Judicial Court, in the form and manner prescribed by a standing order of that court, for leave to appeal an order determining a motion to suppress evidence prior to trial. If the single justice determines that the administration of justice would be facilitated, the justice may grant that leave and may hear the appeal or may order it to the full Supreme Judicial Court or to the Appeals Court for determination. 

(3) (Reserved) 

(4) Probable Cause Hearings. No interlocutory appeal or report may be taken of matters arising out of a probable cause hearing. 

(b) Procedural Requirements. 

(1) Time for Filing Appeal. An appeal under Rule 15(a)(1) shall be taken by filing a notice of appeal in the trial court within thirty days of the date of entry of the order being appealed. An application for leave to appeal under Rule 15(a)(2) shall be made by filing within thirty days of the date of entry of the order being appealed, or such additional time as either the trial judge or the single justice of the Supreme Judicial Court shall order, (a) a notice of appeal in the trial court, and (b) an application to the single justice of the Supreme Judicial Court for leave to appeal. 

(2) Record. The record for an interlocutory appeal shall be defined and assembled pursuant to Massachusetts Rule of Appellate Procedure 8. 

(3) Findings. The judge shall make all findings of fact relevant to the appeal or the application for leave to appeal within the period specified in Rule 15(b)(1) for filing the notice of appeal. 

(c) Determination of Motions. Any motion the determination of which may be appealed pursuant to this rule shall be decided by the judge before the defendant is placed in jeopardy under established rules of law. 

(d) Costs upon Appeal. If an appeal or application therefor is taken by the Commonwealth, the appellate court, upon the written motion of the defendant supported by affidavit, shall determine and approve the payment to the defendant of his or her costs of appeal together with reasonable attorney's fees to be paid on the order of the trial court upon the entry of the rescript or the denial of the application. 

(e) Stay of the Proceedings. If the trial court issues an order which is subject to the interlocutory procedures herein, the trial of the case shall be stayed and the defendant shall not be placed in jeopardy until interlocutory review has been waived or the period specified in Rule 15(b)(1) for instituting interlocutory procedures has expired. If an appeal is taken or an application for leave to appeal is granted, the trial shall be stayed pending the entry of a rescript from or an order of the appellate court. If an appeal or application therefor is taken by the Commonwealth, the defendant may be released on personal recognizance during the pendency of the appeal.

Amended April 29, 1986, effective July 1, 1986; amended effective April 14, 1995; March 1, 1996; amended June 8, 2016, effective August 1, 2016.

Reporter's Notes

(2016) The 2016 amendments to Rule 15 respond to the Supreme Judicial Court’s decision in Commonwealth v. Jordan , 469 Mass. 134 (2014), a case in which the Commonwealth sought interlocutory review of a suppression order through a late-filed notice of appeal and application for leave to appeal. In agreeing to consider the appeal in spite of the late filings, the Court acknowledged that the procedures governing the timeliness of such appeals lacked clarity, id. at 145, a problem that the Court addressed by announcing specific procedures prospectively applicable to Rule 15 filings seeking leave to appeal suppression orders. Id. at 147-148. In addition to this clarification of Rule 15 filing procedures, the Court expressed concern that then-Rule 15(b)(1)’s ten-day filing period for such appeals might be insufficient. Id. at 149-150. As discussed below, amended Rule 15 implements the procedural framework mandated in Jordan and expands to thirty days the time for filing a notice of appeal and an application for leave to appeal from an order determining a motion to suppress evidence. Amended Rule 15 also includes non-substantive changes that clarify its mandate and update it to reflect current law. 

Rule 15(a)(1) Right of Appeal Where Pretrial Motion to Dismiss or for Appropriate Relief Granted. Amended Rule 15(a)(1) reflects longstanding case law, making it clear that the Appeals Court is the court to which the Commonwealth may appeal the allowance of a motion to dismiss or of a motion for appropriate relief other than to suppress evidence. See Commonwealth v. Friend , 393 Mass. 310, 314 (1984) (Commonwealth’s appeal from allowance of a motion to dismiss must be to the Appeals Court). 

Rule 15(a)(2) Right of Appeal Where Motion to Suppress Evidence Determined. Amended Rule 15(a)(2) implements the late-filing procedures mandated by the Supreme Judicial Court in Commonwealth v. Jordan , 469 Mass. 134 (2014) for interlocutory appeals of an order determining a motion to suppress. Former Rule 15(a)(2) did not specify what showing an applicant for such relief must make concerning the timeliness of the necessary filings, hampering the efforts of single justices to be consistent in addressing the threshold issue of whether the notice of appeal and application for leave to appeal were timely filed and, if not, whether they should nevertheless be considered. See Jordan, 469 Mass. at 145 (acknowledging a “lack of clarity” in the single justices’ application of procedural rules governing timeliness of Rule 15(a)(2) filings). 

Amended Rule 15(a)(2) cures this deficiency, incorporating by reference the Supreme Judicial Court’s standing order prescribing with specificity the form and manner for making an application to a single justice for leave to appeal a suppression order. This standing order, Supreme Judicial Court Order Regarding Applications to A Single Justice Pursuant to Mass. R. Crim. P. 15(a)(2) (2016), in effect codifies Jordan’s procedural framework for addressing timeliness issues, including a requirement that an application for leave to appeal a suppression order contain an affirmative representation that the application and notice to appeal are, or are not, timely under Rule 15(b)(1). If the appeal or application is untimely, the standing order requires that the application be accompanied by a motion to enlarge time for filing, supported by an affidavit providing “in meaningful detail the reasons for the delay.” See Supreme Judicial Court Order Regarding Applications to A Single Justice Pursuant to Mass. R. Crim. P. 15(a)(2), § (a)(7) (2016). See also Commonwealth v. Jordan , 469 Mass. 134, 147-148 (2014) (setting out 2 “Rule 15 procedure in future cases”). 

The purpose of this provision is to permit the single justice to whom the application is made to decide (1) whether the application satisfies Rule 15’s timing requirements, and, if it does not, (2) whether the application should nevertheless be considered, before proceeding to the merits of the application and, if appropriate, the appeal. This threshold determination by the single justice is intended to be final, foreclosing further consideration of this procedural issue by the full court or the Appeals Court if the single justice refers the appeal to either for determination. See Jordan, 469 Mass. at 148 (2014). 

Rule 15(a)(3) Right of Appeal Where Transfer of Delinquency Proceeding is Denied. Rule 15(a)(3), permitting the Commonwealth to appeal a judge’s denial of a requested transfer of a delinquency proceeding to Superior or District Court for criminal prosecution, is deleted. G. L. c. 119, § 61, which provided for such transfers, was repealed, making Rule 15(a)(3) obsolete. This section is reserved for possible amendment to reflect current law. 

Rule 15(b)(1) Time for Filing Appeal. Rule 15(b)(1), as amended, increases the time to file a notice of appeal and an application for leave to appeal a suppression order to thirty days, clarifying that the starting point for that time period is the date that the order being appealed is entered by the lower court. This filing period is meant to balance the need for adequate time to consider and prepare an application for interlocutory review of a suppression order against the potential for unnecessary, widespread delays in resolving the many criminal cases which involve suppression orders. Thirty days, the filing period applicable to other interlocutory appeals under Rule 15 and presumptively applicable to all appeals in criminal cases, see Rule 4(b), Mass. R. A. P., as amended, 431 Mass. 1601 (2000), should ordinarily suffice. However, if in a particular case a party can demonstrate with specificity that thirty days is insufficient, the rule provides for leave to seek additional time from either the trial judge or single justice. If there is a timely motion to reconsider the suppression order in question, the thirty-day time period for filing an application for interlocutory review does not commence until the trial court enters its order deciding the motion to reconsider. See Jordan, 469 Mass. at 147 n. 24. 

The SJC’s standing order incorporated in amended Rule 15(a)(2) provides that the party opposing interlocutory appeal of the suppression order may file a memorandum in opposition to that application within fourteen days after the application for leave to appeal is entered. Supreme Judicial Court Order Regarding Applications to A Single Justice Pursuant to Mass. R. Crim. P. 15(a)(2), § (c) (2016). The order further permits the single justice to extend or shorten the time to file such opposition and provides that a party deciding not to file an opposition must serve notice of that intention within the time allowed for filing the opposition. Id. 

Rule 15(b)(2) Record; Rule 15(b)(3) Findings. Rule 15(b)(2) and Rule 15(b)(3) contain the provisions of former Rule 15(b)(2), renumbered to separate former Rule 15(b)(2) into two parts, Rule 15(b)(2) providing for definition and assembly of the record and Rule 15(b)(3) requiring timely findings by the trial judge.

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