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SJC-11829

DANIEL D. TAVARES vs. COMMONWEALTH.

November 10, 2016.

Bail. Supreme Judicial Court, Superintendence of inferior 

courts.

The petitioner, Daniel D. Tavares, appeals from a judgment 

of a single justice of this court that denied his petition 

pursuant to G. L. c. 211, § 3, but directed that he could seek, 

in the Superior Court, return of certain forfeited bail. We 

affirm.

Tavares has been charged, in three different indictments, 

with possession with intent to distribute cocaine, in violation 

of G. L. c. 94C, § 32A (c); conspiracy to violate the drug law, 

in violation of G. L. c. 94C, § 40; and larceny over $250, in 

violation of G. L. c. 266, § 30 (1). Each of the cases 

originated with a complaint in the District Court and was 

subsequently transferred to the Superior Court after the 

corresponding indictment issued. The cases are now pending in 

the Superior Court where, according to their respective dockets, 

that court has imposed a "unified bail." Although the record 

before us is not entirely clear, it appears that the bail set in 

the District Court in the possession with intent to distribute 

case and in the conspiracy case was transferred to the Superior 

Court, after Tavares was indicted on those charges, in the total 

amount of $2,500. In the larceny case, it does not appear that 

bail was transferred. Rather, it appears that, after Tavares 

was indicted on that charge, the bail that had been set in the 

District Court -- $1,000 -- was reduced to zero and the posted 

amount returned to the surety. Bail was then set in the 

Superior Court in the amount of $500, bringing the total bail in 

the three Superior Court cases to $3,000.
2

Docket entries for each of the cases indicate that on 

September 11, 2013, Tavares defaulted and a warrant issued. On 

October 21, 2013, Tavares was brought into court, the default 

was removed, and the warrant was recalled. The following day, 

the court held a new bail hearing, revoked the previous order of 

bail, and set a new unified bail in the amount of $13,000. On 

November 5, 2013, the court held a bail forfeiture hearing, 

after which the court denied forfeiture in the possession with

intent to distribute and conspiracy cases but allowed it in the 

larceny case. The docket in the larceny case further indicates 

that on November 29, 2013, Tavares forfeited $500.

After the bail forfeiture, Tavares filed his G. L. c. 211, 

§ 3, petition in the county court. The issues that he raised 

therein pertain only to bail in connection with the larceny 

case. He argued that double or triple bail was imposed --

first, in the District Court in the amount of $1,000; second, in 

the Superior Court in the amount of $500, as a part of the 

unified bail; and third, again in the Superior Court, when a new 

unified bail was set in the amount of $13,000. In his petition, 

Tavares asked the county court to "vacate the bail orders, 

release him, and order his $500 be returned." He also sought

dismissal of all three Superior Court cases. The Commonwealth 

opposed the petition and the relief sought except as to the 

return of the forfeited amount of $500. As to that, the 

Commonwealth acknowledged that, pursuant to Commonwealth v. The 

Stuyvesant Ins. Co., 366 Mass. 611 (1975) (Stuyvesant), 

forfeiture may have been improper, and that Tavares might be 

entitled to the return of that money. The single justice 

agreed. She denied the relief that Tavares sought as to 

vacating the bail orders, his release, and dismissal of the 

indictments, but held that once the default had been removed, 

the $500 in bail should not have been forfeited. She further 

indicated that Tavares could file a motion in the Superior Court 

seeking return of that amount.

In his appeal to this court, Tavares argues that the single 

justice erred in adopting the Commonwealth's suggested reading 

of the Stuyvesant case. The argument is puzzling given that the 

single justice's interpretation and application of that case 

here works in Tavares's favor -- that is, her decision, which we 

are affirming, allows him to seek return of the forfeited bail 

in the Superior Court. To the extent that the single justice 

otherwise denied the relief that Tavares sought, the Stuyvesant

case did not bear on the decision.
3

Furthermore, there is no merit to Tavares's arguments 

regarding the imposition of double or triple bail in the larceny 

case. Tavares is correct insofar as he argues that, pursuant to 

G. L. c. 276, § 58, eighth par., if a defendant posts bail in 

the District Court and is subsequently arraigned in the Superior 

Court for the same offense, " the amount of any bail bond posted 

. . . in the district court shall be carried over to a bail bond 

required by the superior court." As best we can discern from 

the record before us, however, there was no bail to be 

transferred because the bail imposed by the District Court in 

the larceny case was reduced to zero before Tavares was 

arraigned in the Superior Court on the larceny indictment. In

any event, G. L. c. 276, § 58, also provides for the Superior 

Court judge's discretion in setting the amount of bail. In 

other words, the judge had the authority to set bail in the 

larceny case in the amount of $500. He was not imposing a 

"second" bail. Similarly, when the unified bail was 

subsequently set at $13,000, this was not a "third" bail, but 

rather a new bail order, set after Tavares defaulted. This too 

was within the judge's discretion. See Commesso v. 

Commonwealth, 369 Mass. 368, 374-375 (1975) (discussing G. L. 

c. 276, § 58, and circumstances in which judge may revise bail).

To the extent that, in addition to the return of the 

forfeited bail, Tavares continues to press for additional relief 

-- to have the current bail order vacated; to be released from 

custody; and for dismissal of the charges against him -- he 

provides no cogent argument or support for this position, and we 

see no reason such relief would be warranted here. Finally, 

Tavares also attempts to raise several other issues before the 

full court that do not appear to relate to the bail issues 

raised before the single justice, including claims of 

ineffective assistance of counsel and claims that relate to 

pending cases other than the three addressed herein. Where

those issues were not raised before the single justice, we do 

not address them. See, e.g., Carvalho v. Commonwealth, 460 

Mass. 1014 (2011), and cases cited.

The decision of the single justice, which denied relief 

pursuant to G. L. c. 211, § 3, but provided that Tavares may 

seek return of the forfeited bail in the Superior Court, is 

affirmed.

So ordered.

Daniel D. Tavares, pro se.
4

Susanne G. Reardon, Assistant Attorney General, for the 

Commonwealth.