“CONTINUANCE WITHOUT A FINDING” DOES NOT TRIGGER GPS REQUIREMENT FOR SEX OFFENSE

In Commonwealth v. Doe the Supreme Judicial Court of Massachusetts (SJC) ruled that the statutory requirement that a sex offender wear a GPS monitoring device as a condition of probation applies only where the probationer was convicted of a sex offense and does not apply where the charge was continued without a finding. The allegations were that the defendant inappropriately touched a woman whom he had met at a social gathering.  The defendant was charged with indecent assault and battery on a person over the age of fourteen.  In a plea colloquy, the defendant admitted to sufficient facts to support a finding of guilt. The judge continued the case without a finding for a term of five years, during which the defendant would be on probation and subject to certain conditions. Among those conditions was GPS monitoring which, in the judge’s opinion, was required by statute for a person placed on probation for this sex offense…. Five days later, the defendant filed a motion to remove GPS monitoring as a condition of his probation, claiming that the statute does not impose mandatory GPS monitoring for persons who are on probation pursuant to a continuance without a finding.  The relevant portion of G.L. c.265, §47 provides that “any person who is placed on probation for any offense listed within the definition of ‘sex offense,’ … as defined by statute, shall, as a requirement of any term of probation, wear a global positioning system device … at all times for the length of his probation….” The judge denied the defendant’s motion but reported the following question of law …  ‘Whether the provisions of G.L. c.265, §47, apply to a defendant who was placed on a continuance without a finding for the charge of indecent assault and battery on a person over the age of fourteen.

The SJC answered the reported question in the negative, and  it vacated the order imposing mandatory GPS monitoring. In so doing, the Court explained that while “the term ‘sex offender’ is not defined in the act that created the language of c.265, §47, … the term is defined in … c.6, §178C, to which §47 refers …, as a person ‘who has been convicted of a sex offense …’ . ‘An admission to sufficient facts followed by a continuance without a finding is not a “conviction” under Massachusetts law.’ Therefore, … a defendant whose sex offense charge is continued without a finding does not fall within the definition of ‘sex offender.’”

 

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