Opinion
No. 4D99-2970.
Opinion filed April 12, 2000.
Petition for writ of habeas corpus to the Circuit Court for the Eleventh Judicial Circuit, Dade County; Robert N. Scola, Jr., Judge; L.T. No. 93-26749.
Bennett H. Brummer, Public Defender, and John E. Morrison, Assistant Public Defender, Miami, for petitioner.
Robert A. Butterworth, Attorney General, Tallahassee, and Margaret Brenan, Assistant Attorney General, Miami, for respondents.
This is a petition for writ of habeas corpus filed by Charles Murray seeking an order of this court releasing him from a residential treatment center to probation. We conclude that we do not have jurisdiction and dismiss the petition.
In Dade County, petitioner was convicted, through a negotiated plea, of sexual battery on a minor child, the agreed sentence being incarceration followed by probation with a condition that petitioner complete a sex offender treatment program. After the incarcerative portion, and prior to release for service of the probation portion, petitioner was civilly committed to the Martin County Treatment Center as a sexually violent predator under the Ryce Act, upon the state's motion. Petitioner then moved for specific performance of the plea agreement, asking that he be released to serve the agreed probation. The motion was filed in the Eleventh Circuit in and for Dade County under the Ryce Act case number, and lists the criminal case number as the previous case number, making it appear that the two cases are combined. After a hearing, the trial court denied the motion.
See secs. 394.910-.931, Fla. Stat. (1999).
Petitioner then filed in this court the present habeas petition arguing that the state must abide by its plea agreement, and (as petitioner clarified in his motion for rehearing) that the commitment order is illegal since the plea agreement provided how and where petitioner was to receive treatment after termination of his prison sentence. Petitioner requested specific performance of his plea agreement.
This court originally transferred the petition to the Third District due to this court's lack of jurisdiction, but the Third District transferred the case back to this court, also asserting a lack of jurisdiction.
In its response, the state argues that this court does not have jurisdiction over this matter, and, even if this court did have jurisdiction, petitioner would not be entitled to relief on the merits. As to jurisdiction, the state correctly points out that habeas review is unavailable where an appeal is available. See Johnston v. Dugger, 583 So.2d 657, 663 (Fla. 1991); Hollingshead v. Mayo, 79 So.2d 774 (Fla. 1955); Leichtman v. Singletary, 674 So.2d 889, 891 (Fla. 4th DCA 1996). Since petitioner is challenging the denial of his motion for specific performance, which sought dismissal of the commitment proceedings that occurred in Dade County, he should have filed an appeal or certiorari petition from that denial. Under rule 9.140(b)(1)(C) of the Florida Rules of Appellate Procedure, a defendant may appeal "orders entered after final judgment or finding of guilt. . . ." The subject order denying petitioner's post-judgment motion to require the state to abide by its plea agreement falls under that category. Even if an appeal is not proper under that rule, because the matter is viewed as proceeding under the civil Ryce Act case rather than under the criminal sexual battery case, certiorari review appears appropriate. Clearly, an improper refusal to dismiss the Ryce Act proceedings would cause petitioner irreparable harm that could not be remedied on appeal since he will be in detention during the proceedings, and nothing on appeal can cure that.
While, as the state notes, orders denying motions to dismiss generally are not reviewable through certiorari, they are reviewable when the requisite irreparable harm is shown. However, on this record we cannot treat this habeas petition as seeking the correct remedy of an appeal or certiorari as it does not appear that there is a written order denying the motion.
Although petitioner states that he is arguing that his detention is illegal, his claim is actually that the civil commitment based on the Ryce Act proceedings is a breach of the plea agreement in his criminal case. He does not allege that his commitment under the Ryce Act is illegal, except insofar as that commitment breaches a condition of his plea agreement.
When a court reviewing a habeas petition does not have appellate jurisdiction over the trial court that issued the challenged order or process, as is the case here, the scope of the appellate court's inquiry is limited to whether the challenged order was entered without jurisdiction or is void or illegal. The appellate court may not discharge the petitioner if the detention order is merely defective, irregular or insufficient in form or substance. See Alachua Reg'l Juvenile Detention Ctr. v. T.O., 684 So.2d 814, 816 (Fla. 1996) ;Leichtman, 674 So.2d at 891.
The order denying the motion to enforce the plea was not illegal, nor was the order of civil commitment. Petitioner's remedy was to appeal those orders, appeal from the denial of the motion to enforce the plea, or he could have moved to withdraw his plea. See, e.g., Foldi v. State, 695 So.2d 886 (Fla. 2d DCA 1997). The trial judge did not consider the civil commitment to be a violation of his probation because the probationary period continued to run while petitioner was civilly committed.
Concluding that we do not have jurisdiction, we dismiss the petition.
KLEIN and HAZOURI, JJ., concur.