COUNTY, SS.                                                           CIVIL ACTION NO. ______

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John Doe
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v.

INSERT COURT NAME
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The plaintiff respectfully requests this Honorable Court to enter an Order staying all proceedings in the insert name of court in Criminal Case No.8853 CR 4268, in accordance with the first request for relief contained in the plaintiff's complaint filed herewith.

                                                                                    Respectfully submitted,
                                                                                    By his attorney,

Date:  ____________                                         __________________________________
                                                                                    Insert name
                                                                                     Address
                                                                                     Phone number
 

COUNTY, SS.                                                           CIVIL ACTION NO. ______

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John Doe
|
v.

INSERT COURT NAME
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PRELIMINARY STATEMENT

This is an action to invoke the general superintendence of this Court to
correct errors of law in proceedings of the insert name of court, Justice insert name of judge presiding.

Plaintiff seeks reversal of the District Court's orders that the marginally indigent plaintiff (defendant in the criminal case below) must pay his $250.00 contribution to appointed attorney's fees in a lump sum rather than in installments, that he not be allowed to exercise his right to a first-instance jury trial prior to paying in one lump-sum the $250.00 attorney-fee assessment, that he be denied appointed counsel because of his inability to pay the $250.00 in one lump-sum, that he not be allowed to keep the same appointed counsel that was assigned to him at his arraignment.

JURISDICTION

1. Jurisdiction is conferred upon this Court by M.G.L. c. 211, sec. 3, insert chapter and section or code identifier of your state's law,  which allows a party aggrieved by an interlocutory order by the trial court to seek review under the court's superintendency powers of interlocutory matters where no post-trial relief would put the appealing party "in statu quo." Elder v. Commonwealth, 385 Mass. 128. 132 (1982).

PARTIES

2. Your plaintiff, John G. Doe, is the defendant in the criminal action Comm. v. Doe, Docket Number 8853 CR 4268, in insert name of court.

3. Defendant is a department of the Trial Court of the Commmonwealth of
Massachusetts and includes the Justice presiding in the First Criminal Session.

FACTS

4. The judge determined on 19 October 1988 that Doe was marginally indigent, appointed him counsel through the Middlesex County Bar Advocate Program, and ordered Doe to contribute $250.00 toward attorney's fees by 4 November 1988.

5. Claiming that he was unable to pay the $250.00 by 4 November 1988, Doe made out a new probation "face sheet" on that date to recalculate his ability to pay and caused it to be brought before the presiding justice of the insert name of court.

6. The judge refused to lower the contribution ordered.

7. Doe  then asked for more time to pay the $250.00, which the judge had the discretion to allow implicitly under G.L. c. 211D and Supreme Judicial Court Rule 3:10 and explicitly under the old Mass.R.Crim.P. Rule 33(f)(2), which allowed for payment in a lump sum or in installments over a duration which did not impede
the exercise of one's right to counsel. See Reporters' Notes, ALM Criminal Rule 33 and Fuller v. Oregon, 417 U.S. 40, 53-54 (1974), where the validity of such reasoning was affirmed.

8. The judge re-determined that Doe falls into category b of S.J.C. Rule 3, i.e., is indigent but able to contribute.

9. The judge refused to extend the time, ordered Doe's appointed counsel to withdraw, and ordered Doe to appear on Tuesday, 8 November 1988, either pro se or with private counsel, in violation of S.J.C. Rule 4, which allows the judge to order the case to proceed without defense counsel only if the defendant is found to be neither indigent nor marginally indigent.

10. Doe  then requested to exercise his right to a first-instance jury trial.

11. The judge refused to allow Breen to exercise his right to proceed to the jury session prior to payment of the $250.00 fee assessed.

12. Doe at no time waived either orally or in writing his right to a first-instance jury trial.

13. Counsel at no time filed her written withdrawal from the case.

14. On behalf of Doe, immediately following the proceeding, defense counsel completed a Cassette Copy Order Form, Order Number 17425, so that she could attach to this complaint a copy of the relevant portion of the proceeding as evidence of what transpired below.

15. The clerk-magistrate's office then refused to accept the order on the grounds that defense counsel had been ordered to enter her withdrawal at the end of the proceeding.

16. Counsel re-iterated that she had been counsel at the time of the proceeding, that Doe was entitled to a copy of the tape of the proceeding, and that Doe was entitled to have her request the tape on his behalf.

WHEREFORE, your Plaintiff requests this Honorable Court to grant the
following relief:

1. Stay the afore-mentioned proceedings in the insert name of court pending a final determination of this Complaint by this Court.

2. Declare that Doe be allowed to pay the $250.00 contribution to appointed attorney's fees in installments.

3. Declare that Doe be allowed to exercise his first-instance jury trial right prior to payment of the $250.00 contribution toward attorney's fees.

4. Declare that Doe was entitled to appointed counsel at every stage of the proceedings once the determination was made that he was marginally indigent.

5. Declare that Doe be allowed to keep the same appointed counsel in the primary court and/or in the jury session.

6. Declare that the primary court no longer had jurisdiction over Doe as soon as he elected to have a jury trial in the first instance.

7. Declare other such relief as this Court deems just and fair.

Date:  ____________                                        _________________________________
                                                                                    Insert name
                                                                                    Address
                                                                                    Phone number
 
 

I,  insert your name, hereby certify that on insert date, I served by hand/by first class mail, postage prepaid, a copy of both the MOTION FOR STAY OF PROCEEDINGS IN THE insert name of court and the COMPLAINT IN THE NATURE OF A PETITION FOR A WRIT OF CERTIORARI AND TO
INVOKE THE GENERAL SUPERINTENDENCE OF THE COURT to the The Honorable
insert jusge's name, First Justice of insert name of court and city and state of court.

insert date                                                                            ___________   Your signature____________
                                                                                             Your name typed