
    John J. Nettis vs. Commonwealth.
    April 29, 1993.
    
      Supreme Judicial Court. Supervision of inferior courts. Practice, Criminal, Dismissal, Interlocutory appeal.
    
      LaDonna J. Hatton, Assistant Attorney General, for the Commonwealth.
    
      Thomas Lesser for the plaintiff.
   Nettis (defendant) filed a motion to dismiss the three-count indictment against him. That motion was denied based on G. L. c. 277, § 63 (1990 ed.). The defendant then sought relief pursuant to G. L. c. 211, § 3 (1990 ed.). A single justice of this court denied relief under G. L. c. 211, § 3. The defendant appeals. The appeal must be dismissed. “The denial of a motion to dismiss pursuant to Mass. R. Crim. P. 13 [, 378 Mass. 871 (1979),] is not appealable by a defendant until after trial. General Laws c. 211, § 3, may not be used to circumvent our rule. . . . General Laws c. 211, § 3, is not a substitute for normal appellate review of interlocutory orders.” Ventresco v. Commonwealth, 409 Mass. 82, 83-84 (1991) (footnote omitted). In this case, the defendant’s claim for review does not meet the two-part test set forth in Morrissette v. Commonwealth, 380 Mass. 197, 198 (1980). The single justice did not reserve and report the issue; nor did he decide the issue. He merely denied relief pursuant to G. L. c. 211, § 3. This appeal therefore is not properly before us. See Ventresco v. Commonwealth, supra.

Appeal dismissed.

The case was considered on the Commonwealth’s motion to dismiss, a memorandum in support thereof, and the plaintiff’s opposition thereto; the record before the single justice; and the Commonwealth’s request for an expedited decision.  