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SJC-11887

              COMMONWEALTH   vs.   JOSE M. FONTANEZ.


                        February 3, 2016.


Bail.  Supreme Judicial Court, Superintendence of inferior
     courts.


     This case is before us on a reservation and report from a
single justice of the county court. It concerns the same single
issue that we address in Commonwealth v. Morales, 473 Mass.
(2016), also decided today: whether a court has the authority
to revoke a defendant’s bail pursuant to G. L. c. 276, § 58,
where the defendant was "on release," defaulted by failing to
appear, and later was charged with committing a new crime.

     On May 29, 2014, the defendant was arraigned in the Chelsea
Division of the District Court Department on criminal charges in
four separate matters. It was alleged that he had assaulted the
same victim on different dates. In three matters, he was
charged with assault and battery in violation of G. L. c. 265,
§ 13A (a), and in a fourth matter, with assault and battery by
means of a dangerous weapon in violation of G. L. c. 265,
§ 15A (b). The court gave the defendant the bail revocation
warning pursuant to G. L. c. 276, § 58, and released him on
personal recognizance.

     In January, 2015,1 the defendant failed to appear in court
on the District Court matters. The court found him to be in
default and issued default warrants.


     1
       In the intervening months, the defendant was arrested on
new charges. The motion judge noted that in July, 2014, the
defendant was on release in the District Court matters and
                                                                   2



     The defendant subsequently was arraigned, in April, 2015,
on a new charge, assault and battery of a family or household
member, G. L. c. 265, § 13M (a). At his arraignment, the
Commonwealth filed a motion to revoke the defendant's bail in
the Chelsea District Court matters. The court denied the
Commonwealth's motion to revoke the defendant's bail on the
ground that he was no longer subject to bail revocation under
G. L. c. 276, § 58, sixth par. Because the defendant defaulted
in the prior matters, he was no longer "on release," and
therefore did not commit the new crime "during said period of
release." In the new assault and battery matter, the court set
bail in the amount of $2,000, and imposed conditions on the
defendant's release.

     The Commonwealth subsequently filed a petition pursuant to
G. L. c. 211, § 3, in the county court seeking relief from the
denial of its motion to revoke the defendant's bail. The single
justice reserved and reported the matter to the full court.

       In Morales, 473 Mass. at   , we address the reasons why
we interpret G. L. c. 276, § 58, sixth par., to mean that a
defendant such as one in the circumstances presented here is
still “on release” for purposes of bail revocation and why a
judge therefore has the authority to revoke the defendant’s
bail.

     For the reasons there stated, and as in that case, we
remand the case to the county court where the single justice is
directed to enter an order vacating the lower court's ruling and
remanding the matter to that court for further proceedings
consistent with this opinion.

                                   So ordered.

     Donna Jalbert Patalano, Assistant District Attorney, for
the Commonwealth.
     Justin Kyle Brown, Committee for Public Counsel Services,
for the defendant.




arraigned on a new crime in the Boston Municipal Court, but the
Commonwealth did not move to revoke bail on this basis.
