Mass. R. Crim. P. 29

As amended through October 3, 2024

Rule 29 - Revision of Revocation of disposition

(Applicable to District Court and Superior Court)

(a) Revision or Revocation.

(1) Illegal Dispositions. The trial judge, upon the judge's own motion, or the written motion of the prosecutor, filed within sixty days of a disposition, may revise or revoke such disposition if the judge determines that any part of the disposition was illegal.

(2) Unjust Dispositions. The trial judge, upon the judge's own motion, or the written motion of a defendant, filed within sixty days of a disposition, within sixty days of issuance of a rescript by an appellate court on direct review, or within sixty days of the disposition of criminal charges against a codefendant may, upon such terms and conditions as the judge shall order, revise or revoke such disposition if it appears that justice may not have been done.

(b) Affidavits. If a party files a motion pursuant to this rule, the party shall file and serve, and the other party may file and serve, affidavits in support of their respective positions. The judge may deny a motion filed pursuant to this rule on the basis of facts alleged in the affidavits without further hearing.

(c) Notice. The moving party shall serve the other party with a copy of any motion and affidavit filed pursuant to this rule. If the judge orders that a hearing be held on the motion, the court shall give the parties reasonable notice of the time set for the hearing.

(d) Place of Hearing. A motion filed pursuant to this rule may be heard by the trial judge wherever the judge is then sitting.

(e)Appeal. An appeal from a final order under this rule may be taken to the Appeals Court, or the Supreme Judicial Court in an appropriate case, by either party.

Mass. R. Crim. P. 29

As amended June 8, 2016, effective 9/1/2016; amended February 22, 2022, effective 4/1/2022.

Reporter's Notes--2022

This amendment addresses two aspects of the operation of Mass. R. Crim. P. 29. The first clarifies the applicability of Mass. R. Crim. P. 29(a)(1) when the Commonwealth seeks to redress an illegal disposition following a continuance without a finding, or other non-conviction disposition, rather than following a conviction. The second sets forth a narrow exception in Mass. R. Crim. P. 29(a)(2) to the sixty-day time limit for filing a motion to revise or revoke an unjust sentence when the motion is based on the disposition of criminal charges against a codefendant.

In Commonwealth v. Beverly, 485 Mass. 1 (2020), the Supreme Judicial Court held that Mass. R. Crim. P. 29 was the appropriate vehicle for the Commonwealth to challenge as an illegal disposition a continuance without a finding imposed without any terms or conditions, or without a term of probation. The Court explained that a continuance without a finding was a "disposition" pursuant to G.L. c. 278, § 18, and that "where the sentencing disposition of the criminal case is claimed to be illegal, whether it be a conviction, straight probation, or a continuance without a finding, it is subject to a challenge pursuant to a rule 29 motion to revise or revoke." Id. at 10. This amendment to Rule 29 implements Beverly by replacing "sentence" with "disposition" to reflect more accurately the circumstances under which relief is available under this rule.

In Commonwealth v. Tejeda, 481 Mass. 794 (2019), the Supreme Judicial Court recognized under its superintendence authority a limited exception to the rule that motions to revise or revoke must be based upon facts existing at the time of the original disposition. Tejeda involved an armed robbery in which the coventurers were tried separately. Tejeda's trial occurred first, and upon conviction he received a sentence for the robbery of six to eight years. His coventurer's later trial also resulted in a conviction, for which he received a sentence (from a different judge) of five to seven years. Tejeda moved for revision of his sentence based on the disparity between his disposition and that of his coventurer, given his own lesser or at most equal culpability in the crime.

The Supreme Judicial Court acknowledged that ordinarily the trial judge weighing a motion to revise or revoke may consider whether the sentence was unjust only "in light of facts as they existed at the time of the sentencing." Tejeda, id., citing Commonwealth v. DeJesus, 440 Mass. 147, 152 (2003) ("[A] motion to revise or revoke can rely only on facts or circumstances that existed at the time of sentencing"). However, the disposition of a codefendant and any disparity between the sentences of codefendants are appropriately considered at sentencing. It would be arbitrary, the Court found, to permit consideration of a codefendant's sentence when imposed contemporaneously with that of the defendant yet preclude it when the codefendant is sentenced more than sixty days after the defendant. Tejeda, 481 Mass. at 797.

Thus the Court in Tejeda allowed a limited exception permitting the trial judge to consider the subsequent facts of the codefendant's sentence in weighing a motion to revise or revoke when the codefendant was tried separately, sentenced later, convicted of the same crime, and where at the time of the original sentencing it was reasonably apparent that the defendant was less culpable than or equally culpable to the codefendant. Tejeda, 481 Mass. at 796-797. This amendment to Rule 29 furthers the principle elucidated in Tejeda by allowing a defendant to move, or a trial judge sua sponte, to consider the disposition of criminal charges against a codefendant at any time within sixty days of that disposition, even though more than sixty days have passed since the defendant's sentencing.

Although this amendment provides a third period for revision of a disposition, the sixty-day period in which to file a motion under Rule 29 remains jurisdictional. See Commonwealth v. Sitko, 372 Mass. 305, 312-313 (1977) (under Rule 29 predecessor G.L. c. 278, § 29C judge lacks power to extend the sixty-day period); Commonwealth v. Rodriguez, 461 Mass. 256, 260 (2012) (A judge "is not barred from reducing a sentence the judge has imposed until the time limits established in rule 29 to revise or revoke a sentence have expired.").

While a judge's authority under Rule 29 to revise or revoke an illegal or unjust disposition is subject to this sixty-day period, when the disposition is one of probation the judge may always amend the conditions of probation under proper circumstances, so long as the judge does not significantly increase the severity of the original probation terms. Buckley v. Quincy Division of the District Court Department, 395 Mass. 815, 817, 819 (1985) ("The addition of reasonable conditions to an individual's probation does not constitute a revision or revocation of a sentence under rule 29.") See also, Criminal Sentencing in the Superior Court: Best Practices for Individualized Evidence-Based Sentencing (March 2016, Updated October 2019), Commentary to Principle 10 (noting prospect of removal or relaxation of probation conditions can be a valuable incentive for promoting compliance with probation) at 16-17 (https://www.mass.gov/doc/criminal-sentencing-in-the-superior-court-best-practices-for-individualized-evidence-based/download); Boston Municipal Court and District Court Sentencing Best Practice Principles (August 27, 2017), Principle 7 (judge may incorporate written provision in sentencing that after a period of successful compliance the court may consider early probation termination or vacation of certain conditions of probation as an incentive, and that this principle is not intended to abrogate authority under Mass. R. Crim. P. 29) at 2 (https://www.mass.gov/doc/sentencing-best-practices-district-court-and-boston-municipal-court/download).