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SJC-11635

ERNEST WATKINS vs. COMMONWEALTH.

July 17, 2014.

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 Juvenile Court on the 

ground that subjecting him to adult criminal proceedings in the 

Superior Court 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 process. 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 the merits or reserves and reports it to 

the full court, neither of which occurred here, a defendant 

cannot receive review under G. L. c. 211, § 3, from the denial 

of his motion to dismiss." Limbaugh v. Commonwealth, 465 Mass. 

1018, 1019 (2013), quoting Bateman 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 

claim 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, but a right 

to be tried in a different forum. If he is convicted in the 

Superior Court, we see no reason why his 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 reviewed 

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 petitioner.