437 Mass. 592 (August 23, 2002)

A judge may NOT place a defendant on pretrial probation, with dismissal at the end of the probationary period, over the Commonwealth's objection.

After his conviction for assault by means of a dangerous weapon and malicious destruction of property, the defendant complains that his attorney was ineffective for failing to file a motion to dismiss challenging the sufficiency of the evidence set forth in the application for complaint.

In a critical decision the SJC set clear limits on the use of pre-trial probation, stating that the procedures set forth in Brandano cannot be utilized to place a defendant on pre-trial probation over the Commonwealth's objection. The Court noted that, standing alone c.276 §87 does not provide a method for disposing of a case. Only when §87 is used in conjunction with c. 278 §18 (which provides for a continuance without a finding upon an admission to sufficient facts) can §87 be used as a disposition.

The Court noted that if a judge were to allow a lengthy continuance before obtaining a guilty plea or admission to sufficient facts, and the defendant subsequently failed to comply with the probationary conditions, the Commonwealth would face "the task of prosecuting a stale case, with all the difficulties that plague such a delayed trial." Note, however, that nothing prevents the Commonwealth from agreeing to pre-trial probation in contemplation of dismissal, but this may be done only if the Commonwealth consents.

[As some of you may have already realized, in the present case, a continuance without a finding is not even available because such a disposition is prohibited in cases involving rape and indecent assault and battery on a child].