Rodriguez v. State

Third District Court of Appeal
State of Florida
Opinion filed December 13, 2017.
Not final until disposition of timely filed motion for rehearing.
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No. 3D16-1529
Lower Tribunal No. 07-58-A-P
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Lazaro Rodriguez,
Appellant,
vs.
The State of Florida,
Appellee.
An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the
Circuit Court for Monroe County, Luis M. Garcia, Judge.
Lazaro Rodriguez, in proper person.
Pamela Jo Bondi, Attorney General, and Arlisa Certain, Assistant Attorney
General, for appellee.
Before SUAREZ, LAGOA, and SCALES, JJ.
LAGOA, J.
Appellant, Lazaro Rodriguez (“Rodriguez”), appeals from the denial of a
motion to dismiss the pending amended violation of probation (“VOP”) affidavit.
Because the order denying Rodriguez’s motion is not an appealable order, we
dismiss the appeal.
Rodriguez alleges that a Monroe County circuit judge issued a warrant for
violation of probation but that no hearing has been held. The State contends that
an order denying an inmate’s motion for violation of probation hearing is neither a
final judgment adjudicating guilt nor an order revoking or modifying probation
under Florida Rule of Appellate Procedure 9.140. We agree. See Torres v. State,
700 So. 2d 1247, 1248 (Fla. 5th DCA 1997).
The proper procedure is for Rodriguez to petition the circuit court in the
Twentieth Judicial Circuit for a writ of habeas corpus as he is incarcerated in the
Charlotte Correctional Institution located in Punta Gorda, Florida. Pursuant to
section 79.09, Florida Statutes (2016), only the circuit court within the county
where an inmate is incarcerated has jurisdiction to consider a writ of habeas
corpus. See Alachua Reg’l Juvenile Det. Ctr. v. T.O., 684 So. 2d 814, 816 (Fla.
1996).
We therefore dismiss the appeal without prejudice to Rodriguez filing a
petition for writ of habeas corpus in the Twentieth Judicial Circuit.
Dismissed without prejudice.
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