RAUL DIAZ, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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A detainer filed against an incarcerated probationer is insufficient to trigger the right to a timely hearing on a probation violation charge.
[1] A writ of mandamus is an extraordinary remedy that will not be granted unless the petitioner demonstrates a clear legal right to the relief sought and a compelling necess…
[2] Florida Rule of Criminal Procedure 3.790(b) requires a court to provide a probationer an opportunity to be heard on a violation of probation charge as soon as practicable…
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Join FLexlaw to unlock all legal intelligenceDiaz, on probation for an Orange County case, was incarcerated for another offense. Orange County filed a detainer against him in prison. Diaz sought …
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Diaz seeks a writ of mandamus from this court to require the trial court to hold a hearing to dispose of a violation of probation charge pending against him. He claims he is entitled to a timely hearing pursuant to Florida Rule of Criminal Procedure 3.790(b). We deny the petition.
The record discloses that on May 26, 1998, Diaz pled guilty and received eighteen months probation in an Orange County criminal case. On January 5, 1999, he pled guilty in an Osceola County criminal case and was sentenced to 30.15 months in prison. On February 2, 1999, Orange County filed a detainer against him in prison, based on an affidavit of violation of probation regarding the Orange County case.
Diaz then filed a petition for writ of habeas corpus in the Orange County circuit court. He sought to instigate a hearing to dispose of the violation of probation charge. The trial court denied the petition stating that Diaz had sought the wrong remedy, and that he was not being illegally detained. This petition was then filed.
Rule 3.790(b) provides that when a probationer disputes the charge of violation of probation and is brought before the court which granted probation, then “as soon as practicable” the court should give the probationer “an opportunity to be fully heard in person, by counsel, or both.” This rule is based on section 948.06(1) and (4), Florida Statutes, which contains similar provisions. However, both the rule and the statute contemplate an arrest of the probationer and his or her return to the court which granted probation originally.
The record before us does not establish that Diaz has been arrested for violation of probation in the Orange County case. An arrest triggers the probationer’s right to be brought before the court which placed him on probation, and to a timely hearing in the event a violation is disputed. Simply filing a detainer against a person incarcerated in prison on another criminal case is insufficient.
Petition for Writ of Mandamus DENIED.
GOSHORN and PETERSON, JJ., concur.
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Chapman v. State, 910 So. 2d 940 (Fla. 5th DCA 2005)…ng on an affidavit alleging a violation of probation. A probationer is only entitled to be heard on a violation of probation after his arrest and return to the court which granted the probation. Bonner, 866 So. 2d at 164-165. See also Diaz v. State, 737 So. 2d 1203 (Fla. 5th DCA 1999) (holding that filing a de-tainer is not the equivalent of an arrest and does not trigger a probationer’s right to be brought before the court that placed him on probation for a timely violation of probation hearing). Thus, there…
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Perry v. State, 779 So. 2d 625 (Fla. 1st DCA 2001)…PER CURIAM. DENIED. Diaz v. State, 737 So. 2d 1203 (Fla. 5th DCA 1999). BARFIELD, C.J., WEBSTER and Van NORTWICK, JJ., concur.…
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Bonner v. State, 866 So. 2d 163 (Fla. 5th DCA 2004)…template that a probationer [*165] be given an opportunity to be heard “as soon as practicable,” on his or her VOP, but they contemplate the arrest of the probationer and his or her return to the court which granted the probation. See Diaz v. State, 737 So. 2d 1203 (Fla. 5th DCA 1999). The remedies sought by Bonner in this case are premature and inappropriate. AFFIRMED. MONACO and TORPY, JJ., concur. . Section 948.06, relied upon by Bonner, provides: 1) Whenever within the period of probation or community…