## Facts

- A Boston traffic-enforcement officer issued Gerard Rotonda, III a parking ticket on December 22, 1998.
- Rotonda confronted the officer, yelling invectives and racial slurs; the officer feared he would strike her and kept her radio transmission open so others could hear.
- Rotonda was charged with violating civil rights without bodily injury (G.L. c. 265, § 37) and threatening to commit a crime (G.L. c. 275, § 2).
- On the scheduled trial date, Rotonda sought a continuance to investigate threatening calls and vandalism he attributed to sources connected to the officer’s workplace.
- The judge granted the continuance and suggested resolution short of trial; negotiations failed.
- The judge accepted an admission to sufficient facts and imposed a one-year continuance without a finding (CWOF) with unsupervised probation and a condition that Rotonda pay $5,000 to the officer as “restitution.”
- The Commonwealth objected that (1) a CWOF under G.L. c. 278, § 18 requires supervised probation, and (2) the $5,000 payment was not supported by any documented loss and was unlawful.
- The Commonwealth sought extraordinary relief under G.L. c. 211, § 3; after remands for findings, the matter was reported to the full Supreme Judicial Court.

## Issues

1. Whether G.L. c. 278, § 18 requires supervised probation as a mandatory component of a CWOF.
2. Whether a judge may condition a CWOF on a $5,000 payment to the complaining witness labeled “restitution” absent evidence and findings of economic loss and causation.

## Decision

- The court held that G.L. c. 278, § 18 does not require supervised probation; unsupervised probation may be imposed as part of a CWOF.
- The court held that the $5,000 payment condition, on this record, was contrary to law and public policy because it was not tied to documented, causally related loss and lacked an adequate legal and evidentiary basis.
- The case was remanded to the District Court for further proceedings consistent with these rulings.

## Legal Principles

- Under G.L. c. 278, § 18, a judge may continue a case without a finding and impose probation “or such other terms and conditions” as ordered; supervised probation is not an express statutory requirement.
- Restitution-like conditions in a criminal disposition require a sound legal basis and record support, including evidence and findings of actual loss and causal connection to the defendant’s conduct.
- Conditions requiring substantial payments to a complaining witness, when untethered to proven loss, risk converting a public prosecution into a private financial arrangement and creating an appearance that a defendant can purchase a favorable disposition, which is inconsistent with public policy.

## Conclusion

A CWOF under G.L. c. 278, § 18 may include unsupervised probation, but a court may not condition a CWOF on a substantial payment to the complaining witness as “restitution” without documented loss, causation findings, and a lawful basis; the improper payment condition required remand for reconsideration of a lawful disposition.


Commonwealth v. Rotonda, 434 Mass. 211 (2001)