RODRIGUEZ v. STATE (2017)

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.

LAGOA, J.