Supreme Judicial Court (May 7, 2009)

The statute requiring GPS monitoring for persons "placed on probation" for certain sex offenses (G.L. c. 265, sec. 47), does not apply to persons on pretrial probation.

Pursuant to Mass. R. Crim. P. 34, the District Court reported constitutional questions regarding G.L. c. 265, sec. 47, and the SJC transferred the case on its own motion. The SJC declined to answer the constitutional questions, instead finding that G.L. c. 265, sec. 47 did not apply to the defendant.

The defendant was charged with two sex offenses, and he was placed on pretrial probation. His initial probation conditions did not reference GPS (section 47 went into effect one week prior to the probation order). Based on the Probation Commissioner's interpretation of section 47, an ex parte request was granted to add GPS to the defendant's conditions. The District Court granted the defendant's request for a stay of execution and reported several constitutional questions pursuant to rule 34.

In reviewing the language of section 47 and the legislative history, the SJC concluded that the Legislature intended GPS to apply only to convicted offenders - not to individuals placed on pretrial probation. The Court found that section 47 uses the terms "offender" and "probationer" interchangeably. The Court stated that the accepted meaning of "offender" is "a person who committed a crime," and the reasonable inference is that "probationer" applies to defendants convicted and sentenced to a term of probation. The SJC did not consider the reported constitutional questions.