Clark v. Commonwealth

771 N.E.2d 153, 437 Mass. 1015, 2002 Mass. LEXIS 422

Opinion

In Commonwealth v. Clark, 53 Mass. App. Ct. 342 (2001), the Appeals Court affirmed the trial court’s allowance of the Commonwealth’s motion to correct an amended mittimus. We denied further appellate review. Commonwealth v. Clark, 435 Mass. 1109 (2002). Simultaneously with his prosecution of that appeal, the petitioner sought to raise the same issues in the county court, by filing a petition pursuant to G. L. c. 211, § 3.

The single justice denied the petition, stating that, “[wjhere a petitioner can raise his claim in the normal course of appeal, as the [petitioner] is doing at present, relief under c. 211, § 3, will be denied. Diggs v. Commonwealth, 429 Mass. 1019 (1999). Foley v. Lowell Div. of the Dist. Court Dep’t, 398 Mass. 800, 802 (1986).” There was no error. The petitioner has both pursued and exhausted available appellate remedies. Commonwealth v. Clark, supra. General Laws c. 211, § 3, does not provide the petitioner with the right to further consideration of the same issues.¹ Genninger v. Commissioner of Correction, 419 Mass. 1009, 1010 (1995).

Judgment affirmed.

Footnotes

1

While it may be within the court’s general superintendence power under G. L. c. 211, § 3, to review the legality of sentences where available alternative remedies are nonexistent or doubtful, Commonwealth v. Cowan, 422 Mass. 546, 547 (1996), and cases cited, the petitioner is not entitled to relief as a matter of right under that statute-where adequate alternative remedies exist. Diggs v. Commonwealth, 429 Mass. 1019 (1999).