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CWOF, With Unsupervised Probation and Payment of Money-Not
Calculated As Restitution-To Victim
In Commonwealth v. Rotonda, 434 Mass. 211 (2001), which came
before the Court on the Commonwealth's appeal, the Court reviewed
a district court order continuing a case without a finding and
conditioning the CWOF on payment of a sum of money, not documented
as restitution, to the complaining witness. The Commonwealth argued
that the disposition was unlawful because probationary period
was not supervised and was conditioned on payment to the victim.
The Court found no error in imposing unsupervised probation as
a term of a CWOF. 434 Mass. at 218-219. However, the payment of
money, which was not restitution, to the complaining witness as
a condition of the CWOF, was held to be against public policy.
The Court wrote that, "[p]rivate payments exchanged for releases
from criminal responsibility erode, if not completely erase, the
demarcation between the criminal and civil systems of justice
and 'benefit the individual at the expense of defeating the course
of public justice.'" 434 Mass. at 220, quoting, Partridge
v. Hood, 120 Mass. 403, 405 (1876). The Court also held that if
the trial court complies with G.L. c. 278 § 18, it need not
follow the procedures set out in Commonwealth v. Brandano, 359
Mass. 332, 337 (1971), to impose a CWOF over the Commonwealth's
objection. 434 Mass. at 216. (The Brandano decision sets out the
procedure to be followed when requesting that the trial court
place a defendant on pre-trial probation over the Commonwealth's
objection.)
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Dismissal Over the Objection Of The Commonwealth
In Commonwealth v Peterson, 51 Mass. App. Ct. 779 (2001) the Appeals
Court vacated a trial court's dismissal of complaints and remanded
for further proceedings. The Court emphasized that when a trial
court seeks to dispose of a case "in the interest of public
justice" without trial and over the Commonwealth's objection
it must follow the procedures set forth in Commonwealth v. Brandano,
359 Mass. 332, 335-357 (1971). 51 Mass. App. Ct at 782-783.
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