MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant pleaded guilty to aggravated assault and battery causing serious bodily injury in violation of G. L. c. 265, § 14. She was sentenced to two years straight probation. After she was alleged to have violated her probation by failing to remain drug and alcohol free and failing to attend a “Stepping Stone” program, attendance at which was a condition of her probation, she entered an agreed disposition whereby she stipulated to her violations and received a sentence of two years at the Massachusetts Regional Womens Correctional Center. The judge stated that the defendant would be given credit for time served.
She was given credit for the sixty-five days she was held pending disposition of the probation violation, but not for the 275 days from October 17, 2018, until July 19, 2019, that she spent in custody awaiting trial on the underlying offense. Since her sentencing, the defendant has repeatedly attempted to obtain that 275 days credit, most recently by filing an “Assented to Second Motion to Reconsider Denial of Motion to Correct Mittimus,” which, despite the Commonwealths assent, was denied.
In this appeal, the Commonwealth concedes that the defendant is entitled to 275 days credit based on its reading of the transcript of the sentencing proceeding at the probation violation hearing. See Commonwealth v. Milton, 427 Mass. 18, 23-24 (1998) (“Criminal defendants have a right to have their sentences reduced by the amount of time they spend in custody awaiting trial, unless in imposing the sentence, the judge has already deducted such time or taken it into consideration in determining the sentence”). See also G. L. c. 127, § 129B; G. L. c. 279, § 33A. We agree.
The Commonwealth also concedes that that the issue is not moot because the defendant remains on parole through the end of the period of her lawful incarceration, which should have ended, but which has been miscalculated due to the failure to include the 275 days credit for time served. We also agree.
Consequently, we reverse the order denying the defendants motion to reconsider. The case is remanded to the Superior Court for allowance of the motion to reconsider and the underlying motion to correct the mittimus. The defendant shall be given additional credit for the 275 days she spent in custody awaiting trial on the underlying offense, and all further relief that flows therefrom. The rescript shall issue forthwith.
So ordered.
reversed and remanded