
    Commonwealth vs. Brenda A. Whalen
    Western District
    June 4, 1987.
    Present: Lenhoff, Larkin & Dohoney, JJ.
    Jared H. Adams for the defendant.
   Dohoney, J.

This case involves a Civil Motor Vehicle Infraction pursuant to General Laws, Chapter 90C.

The Report of the Trial Justice indicates that the defendant was given a citation for failure to stop for a stop sign. The defendant claimed a hearing before the Clerk-Magistrate. The defendant, witnesses, and counsel appeared at the time set for hearing. No representative for the Commonwealth appeared. The Clerk-Magistrate waited one-half hour and then entered a decision of not responsible due to want of prosecution. Approximately one hour later a representative of the Commonwealth appeared and claimed an appeal. The defendant moved that the appeal be stricken because the appeal was not claimed “upon the Clerk-Magistrate’s announcement of the finding and disposition...” as required by Trial Court Rules, VII, Uniform Rules on Civil Motor Infractions, Rule (b) (3). The Trial Justice denied the motion to strike the appeal, and a Report was claimed.

The issue thus presented is whether the claim of appeal was properly exercised. We conclude that it was not. There are several reasons for this conclusion. First, a literal interpretation of the Rule seems to indicate that the appeal must be taken at the conclusion of the hearing. This is a departure from previous law which provided a period of two days to claim an appeal. This change must be given some significance. Secondly, the purpose of Trial Court Rule VII as expressed in Rule (a) is to secure the “prompt and informal determination of civil motor vehicle infractions.” The actions of the Commonwealth certainly do not lend themselves to this purpose. Lastly, the record is devoid any evidence as to the reason the Commonwealth failed to appear.

Our analysis thus leads us to the conclusion that there is no absolute right to claim an appeal one hour after failing to appear for a hearing, and, to the extent there is discretion in either the Clerk-Magistrate or the Trial Justice, there is no evidence whatsoever to support an exercise of discretion in favor of the Commonwealth. Nothing herein should be construed as preventing an extension of a reasonable time to enable either party to consult counsel or superior officers as to the issue of appeal

There being error, the action of the Trial Justice is vacated and the Motion to Strike the Appeal is allowed.  