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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.
