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RIDGEWAY SUPERIOR COURT
FOR THE COUNTY OF RIDGEWAY
STATE OF RIDGEWAY,
Plaintiff,
v.
VELATIAL,
Defendant.
Action No. RSC-CM-9251
MOTION TO STRIKE
Defendant Velatial (“Defendant”), by and through the Ridgeway State Public
Defender Office, pursuant to Rid. R. Crim. P. 13, respectfully moves the court to strike
the superseding criminal information as an amendment of substance. A memorandum of
law in support and proposed order is attached.
Dated: June 30, 2026 Respectfully submitted,
/s/ Nicklaus_s
NICKLAUS_S (Rid. Bar No. 10241)
Supervisory Public Defender
Ridgeway State Public Defender Office
Division of Appeals & Litigation
1 Jackson Road
Palmer, Ridgeway 22093
(123) 456-7890
[email protected]
Attorney for Defendant
RIDGEWAY SUPERIOR COURT
FOR THE COUNTY OF RIDGEWAY
STATE OF RIDGEWAY,
Plaintiff,
v.
VELATIAL,
Defendant.
Action No. RSC-CM-9251
MEMORANDUM OF LAW IN SUPPORT OF
DEFENDANT’S MOTION TO STRIKE
NICKLAUS_S (Rid. Bar No. 10241)
Supervisory Public Defender
Ridgeway State Public Defender Office
Division of Appeals & Litigation
1 Jackson Road
Palmer, Ridgeway 22093
(123) 456-7890
[email protected]
Attorney for Defendant
STANDARD OF REVIEW
Rule 13 of the Ridgeway Rules of Criminal Procedure provides that “a defense or
objection which is capable of determination without trial of the general issue shall be
raised before trial by motion.” Rid. R. Crim. P. 13(c)(2).
STATEMENT OF FACTS
On May 15, 2026, the prosecution filed a criminal information and an affidavit of
probable cause charging the defendant with one (1) count of unlawful possession of
firearms with intent to sell, in violation of R.C.C. § 5.02. On May 20, 2026, the matter
was docketed and the prosecution requested that a summons issue should probable cause
be found. The next day, the prosecution filed a superseding criminal information and
affidavit of probable cause charging the defendant with seventy-seven (77) counts of
unlawful possession of government-issued equipment, in violation of R.C.C. § 2.23;
twenty-four (24) counts of unlawful possession of a firearm, in violation of R.C.C. §
2.26; four (4) counts of unlawful possession of a firearm with intent to sell, in violation of
R.C.C. § 2.27; and two (2) counts of unlawful stockpile of government-issued equipment,
in violation of R.C.C. § 2.24. The prosecution asserted that the amendment was
permissible under Rid. R. Crim. P. 4(d) because the defendant had not been summoned
and had not entered a plea. Later that same day, the court approved the superseding
information and found probable cause as to all counts.
1
ARGUMENT
I. The superseding information should be struck as an impermissible
amendment of substance.
Rule 4 of the Ridgeway Rules of Criminal Procedure permits a judge, “upon his
own motion or the written motion of either party,” to “allow amendment of the form of a
criminal information if such amendment would not prejudice” the parties. Rid. R. Crim.
P. 4(d).1 Rule 4(d) sets forth two requirements for such amendments: “First, the
amendment must be a matter of form and not a matter of substance. Second, even if the
amendment is a matter of form, it must not result in prejudice.” Commonwealth v. Knight,
437 Mass. 487, 491–92 (2002) (citations omitted).
“Whether an amendment is one of substance or form turns upon double jeopardy
principles.” Commonwealth v. Bynoe, 49 Mass. App. Ct. 687, 691 (2000). “If an acquittal
on the original charge would not bar prosecution on the amended charge, the amendment
is one of substance.” Id.; Commonwealth v. Murphy, 415 Mass. 161, 165 (1993);
Commonwealth v. Snow, 269 Mass. 598, 609–10 (1930). Easily, when an amendment
charges “a separate and distinct offense,” as here, “the amendment at issue is one of
substance, not of form,” and allowing the amendment is “error.” Commonwealth v. Souza,
42 Mass. App. Ct. 186, 192–93 (1997); Commonwealth v. McGilvery, 74 Mass. App. Ct.
1 Because Rule 4(d) mirrors its Massachusetts counterpart in text, structure, and purpose, this court must
look to Massachusetts precedent to guide its interpretation. Mass. R. Crim. P. 4(d); Lazerify v. StudsPerSecond, 1
Rid. 101, 104 (2023) (“Owing to the mirroring of these rules, this Court tends to rely on federal precedent to guide
its interpretation of relative issues.”); Titanic v. Nev, 1 Rid. 80, 84 (2023) (“We have generally held that when we
have structurally and practically similar clauses, we may use United States court precedent when creating our
decisions.”); State v. Lx1nas, 1 Rid. 46, 51 (2022) (“We believe that where a provision from our Constitution has
obviously been derived from a provision of a real-life state constitution, we should adopt the interpretation of the
provision from that state’s highest appellate court.”). In any event, the ordinary principles of statutory construction
lead to the same conclusion because if an amendment of substance was permitted, the phrase “of the form” would be
rendered superfluous.
2
508, 511–13 (2009) (amendment to change indictment from possession of class A
controlled substance to possession of class B controlled substance is substantive).
Here, the prosecution originally charged the defendant with one (1) count of
unlawful possession of firearms with intent to sell, in violation of R.C.C. § 5.02.
Then, in a complete change of course, the prosecution amended the charges to
seventy-seven (77) counts of unlawful possession of government-issued equipment, in
violation of R.C.C. § 2.23; twenty-four (24) counts of unlawful possession of a firearm,
in violation of R.C.C. § 2.26; four (4) counts of unlawful possession of a firearm with
intent to sell, in violation of R.C.C. § 2.27; and two (2) counts of unlawful stockpile of
government-issued equipment, in violation of R.C.C. § 2.24; all with new charging
language. Because double jeopardy is implicated by the new offenses, see, e.g., Souza, 42
Mass. App. Ct. at 192–93; McGilvery, 74 Mass. App. Ct. at 511–13, the amendment is
one of substance.
Moreover, the assertion by the prosecution that amendment is permissible because
the defendant had not yet been summoned or entered a plea, and apparently would
therefore not be prejudiced, confuses the analysis. If an amendment “is one of substance,”
the defendant need not “prove additionally that he was prejudiced” by the amendment to
prevail on a motion to strike. Commonwealth v. Morse, 12 Mass. App. Ct. 426, 428
(1981); Commonwealth v. McCaffrey, No. SJC-13750, slip op. at 3 (Mass. January 12,
2026) (“Although the defendant does not claim that the amendments took him by surprise
or forced him to change his defense…they were impermissible because the change was
not of form but of substance.”); McGilvery, 74 Mass. App. Ct. at 512–13 (“We do not
3
reach the question whether there was prejudice to the defendant because the amendment
was of substance and not form.”). Indeed, an amendment of substance is prejudicial by its
very nature.
CONCLUSION
For the foregoing reasons, the court should strike the superseding information.
Dated: June 30, 2026 Respectfully submitted,
/s/ Nicklaus_s
NICKLAUS_S (Rid. Bar No. 10241)
Supervisory Public Defender
Ridgeway State Public Defender Office
Division of Appeals & Litigation
1 Jackson Road
Palmer, Ridgeway 22093
(123) 456-7890
[email protected]
Attorney for Defendant
4
RIDGEWAY SUPERIOR COURT
FOR THE COUNTY OF RIDGEWAY
STATE OF RIDGEWAY,
Plaintiff,
v.
VELATIAL,
Defendant.
Action No. RSC-CM-9251
[PROPOSED] ORDER
UPON CONSIDERATION of Defendant’s Motion to Strike, and good cause
appearing, it is this __ of ________, 2026, by the Superior Court of Ridgeway for
Ridgeway County:
ORDERED that Defendant’s Motion to Strike is GRANTED; and it is
FURTHER ORDERED that the Government’s Superseding Information and
Superseding Affidavit of Probable Cause are STRIKEN; and it is
FURTHER ORDERED that the Government’s Initial Information and Initial
Affidavit of Probable Cause are REINSTATED.
Superior Court Judge
