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SJC

- 11635

ERNEST WATKINS vs . COMMONW EALTH

.

July 17 , 2014

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Supreme Judicial Court , Superintendence of inferior courts.

Ernest Watkins appeals from a judgment of a single justice of this court denying, without a hearing, a petition for relief

under G. L. c. 211, § 3, from the denial of his motion to dismiss an indictment charging him with murder in the first degree. We affirm.

Watkins was fourteen years old at the time of the incident that gave rise to the indictment. He moved to dismiss the
indictment and remand the matter to the J uvenile Court on the ground that subjecting him to adult criminal proceedings in the Superior C o urt pursuant to G. L. c. 119, § 74, 1 rather than youthful offender proceedings in the Juvenile Court, would violate his rights to equal protection and due proce ss

. A judge in the Superior Court denied the motion. His G. L. c. 211, § 3, petition followed.

1 The statute provides in relevant part: " The juvenile court shall not have jurisdiction over a person who had at the time of the offense attained the age of fourteen but not yet attained the age of [eighteen] who is charged with committing murder in the first or second degree. Complaints and indictments brought against persons for such offenses, and for other criminal offenses properly joined under [Mass. R. Crim. P.
9 (a) (1) , 378 Mass. 859 (1978) ] , shall be brought in accordance
with the usual course and manner of criminal proceedings."The case is before us pursuant to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001), which requires an appellant in
these circumstances to "set forth the reasons why review of the trial court decision cannot adequately be obtained on appeal from any final adverse judgment in the trial court or by other
available means." Watkins has not carried his burden under the

rule. It is well established that "[t] he denial of a motion to dismiss in a criminal case is not appealable until after trial, and we have indicated many times that G. L. c. 211, § 3, may not be used to circumvent that rule. Unless a single justice
decides the matter on t he merits or reserves and reports it to the full court, neither of which occurred here, a defendan t cannot receive review under G. L. c. 211, § 3, from the deni al
of his motion to dismiss." Limbaugh v. Commonwealth , 465 Mass. 1018, 1019 (2013), quoting Ba teman v. Commonwealth , 449 Mass. 1024, 1024

- 1025 (2007)

. We have recognized a narrow exception in cases where the motion to dismiss raises a double jeopardy

cl aim of substantial merit. See Neverson v. Commonwealth , 406 Mass. 174, 175

- 176 (1989). Watkins 's argument that his claim is similar to a double jeopardy claim is unavailing. He is not claiming that he has a right not to be tried at all, bu t a right
to be tried in a different forum

. If he is convicted in the Superior Court, we see no reason why hi s challenge to G. L.

c. 119, § 74, could not be addressed on direct appeal. Cf. Fitzpatrick v. Commonwealth , 453 Mass. 1014, 1015 (2009) (decision to transfer proceedings from Juvenile Court to Superior Court pursuant to G. L. c. 119, § 72A, can be review ed on direct appeal). The single justice did not err or abuse his discretion in denying relief under G. L. c. 211, § 3.

Judgment affirmed

.

The case was submitted on the papers filed, accompanied by

a memorandum of law.

Janice Bassil for the p etitioner.