Supreme Judicial Court, January 8, 2014

Speedy Trial Calculation

The Court distinguished a complaint dismissed by the court from one dismissed by the prosecution for the purpose of calculating speedy trial when a defendant’s case is dismissed and then the Commonwealth seeks a new complaint for the offense.  Mass. R. Crim. P. 36(b)(2)(D) excludes only those time periods following a prosecutorial dismissal as defined by Mass. R. Crim. P. 16.  The time period running from a court's dismissal of charges against the defendant and his arraignment on the second complaint of identical charges is not excludable under rule 36(b)(2)(D) or any other provision of rule 36; consequently, this time must count in the speedy trial calculus.


The Court considered whether the factual determinations relevant to a restitution order must be made by a jury beyond a reasonable doubt, rather than by the judge by a preponderance of the evidence, pursuant to Apprendi v. New Jersey, 530 U.S. 466 (2000), Southern Union Co. v. United States, 132 S.Ct. 2344 (2012) and Alleyne v. United States, 133 S.Ct. 2151 (2013).  The Court held that restitution is “an entirely judicially determined penalty, lacking any legislative parameters, and therefore the mandates of Apprendi does not apply.”  “A judge has the authority to conduct restitution hearings and, in so doing, make factual determinations relevant to the restitution award.  As long as the proper procedural mechanisms are employed in the restitution hearing, we see no violation of the Sixth Amendment or art. 12 in this approach.”