Supreme Judicial Court (January 24, 2008)

Mass. R. Crim. P. 29 (a motion to revise or revoke) does not give a judge the authority to vacate a finding of guilt on a criminal complaint.

The defendant plead guilty to the charge of negligent operation of a motor vehicle and the judge entered a guilty finding. The defendant was sentenced to one year of probation, and a restitution hearing was scheduled for two months from that date.

At the restitution hearing, the defendant filed a motion under rule 29, to revise or revoke her sentence. The defendant's motion stated that "unique" and "extenuating" circumstances, coupled with principles of "basic fairness and justice," dictated that her motion be allowed. An accompanying affidavit of counsel stated that the defendant had "cooperated with the conditions of her probation to the best of her ability," had "done her best to remain out of trouble," and had "learned from [her] experience." Over the Commonwealth's objection, the District Court judge allowed the motion to revise or revoke, issued an order vacating the guilty finding, and entered a continuance without a finding for one day, conditioned on the defendant's immediate payment of $6,000 in restitution to the victim.

The Commonwealth filed a petition for relief, pursuant to G.L. c. 211, § 3. A single justice denied the Commonwealth's petition for relief and the Commonwealth appealed to the full court. The full court reversed the single justice's decision and reinstated the defendant's guilty plea and sentence ruling that unlike a sentence, a finding of guilt, once entered, is final and irrevocable except through appeal or motion for a new trial.

The purpose of a rule 29 motion is to permit a judge to reconsider the sentence he has imposed and determine, in light of the facts as they existed at the time of sentencing, whether the sentence was just. If a judge determines that justice has not been done, the judge may revise or revoke a sentence pursuant to Rule 29, not a finding of guilt.

Rule 29 states:
"The trial judge upon his own motion or the written motion of a defendant filed within sixty days after the imposition of a sentence ... may upon such terms and conditions as he shall order, revise or revoke such sentence if it appears that justice may not have been done"