Whether a defendant who is released on bail with conditions by the District Court can appeal the imposition of conditions to the Superior Court, pursuant to G.L. c. 276, § 58A.

The defendant was released on bail by a judge of the District Court subject to conditions, including that he wear a GPS tracking bracelet and follow a curfew. The defendant’s request to modify the conditions was denied. The defendant then appealed to a Superior Court judge who granted the modification, pursuant to G.L. c. 276, § 58A(7). The Commonwealth petitioned the single justice of the SJC, arguing that the Superior Court judge lacked jurisdiction to review the conditions. The single justice reserved and reported the case to the full bench.

Section 58A(7) reads: “A person aggrieved by the denial of a district court justice to admit him to bail on his personal recognizance with or without surety may petition the superior court for a review of the order of the recognizance …” (emphasis added). The issue is whether the defendant was released “on his personal recognizance with or without surety.”

The defendant argues that “personal recognizance,” as used by the District Court, means release without payment of bail; since he had to pay bail, he was not released on personal recognizance. The Commonwealth argues from the language of the bail statutes, G.L. c. 276, § 58 & 58A, that “personal recognizance without surety” would mean release without bail; “personal recognizance with or without surety” refers to release with or without bail and other conditions.

The Commonwealth has the better of the argument. Although the Legislature’s choice of phrasing was poor—“personal recognizance with surety” is an oxymoron in common usage—it is clear from the language of G.L. c. 276, § 58A(2) that the phrase is equivalent to “release[] on conditions … as set forth herein.” Since the defendant was released on conditions as set forth in that section, he is not eligible for review by the Superior Court.

The interesting question is what appeal the defendant does have. If no other appeal is provided, defendants may be able to appeal the conditions of their release from District Court directly to the single justice of the SJC, pursuant to G.L. c. 211, § 3. The single justice identified that possibiity when he asked “whether the defendant’s only remedy is to seek relief from a single justice of this court?” The Court will naturally be wary of opening the door to appeal from every District Court defendant dissatisfied by the terms of release—and may therefore hold that the Legislature intentionally closed off any other possibility of appeal, when it allowed appeal under certain circumstances to the Superior Court.