MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a bench trial in the Roxbury Division of the Boston Municipal Court, the defendant was found guilty of possession of a firearm without a license. Pursuant to Commonwealth v. Guardado, 491 Mass. 666 (2023) (Guardado I), and Commonwealth v. Guardado, 493 Mass. 1 (2023) (Guardado II), we vacate the conviction. After trial in this case, the Supreme Judicial Court held in Guardado I, 491 Mass. at 686-693, that absence of licensure is an element of the offenses of unlawful possession of a firearm.
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In Guardado II, 493 Mass. at 7-12, the court held that, although the Commonwealth presented insufficient evidence of absence of licensure at the original trial, the prohibition against double jeopardy did not bar a retrial.
After the issuance of Guardado II, the parties filed a joint status report in which they state that the Guardado decisions entitle the defendant to a new trial on his firearm conviction. Upon our independent review, we agree. We therefore vacate the conviction of unlawful possession of a firearm, with the Commonwealth remaining free to retry the defendant if it so chooses. See Guardado II, 493 Mass. at 12. Judgment vacated.
Verdict set aside.
FOOTNOTES
2
. The Guardado decision was issued after we had issued our original decision affirming the defendants conviction, but the rescript had not issued.