MICHAEL CHAPMAN, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT

Fla. 5th DCA | 2005-09-23
No. 5D05-2584
PLEUS, C.J., and PALMER, J., concur.
910 So. 2d 940 Florida District Court of Appeal, Fifth District (2005) Positive Treatment
Cited by 7 cases

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Holding

The court held that a petitioner is not entitled to a writ of mandamus to compel the execution of an arrest warrant when serving a sentence in another county, as the petitioner has no personal right to compel the execution of the warrant and no other adequate remedy exists.


Headnotes

[1] A direct appeal, rather than a petition for writ of certiorari, is the proper appellate vehicle for review of an order dismissing a petition for writ of mandamus.

[2] To be entitled to a writ of mandamus, a petitioner must demonstrate a clear legal right to the relief sought, an indisputable legal duty on the part of the respondent to…

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Facts & Procedural History

Michael Chapman, serving sentences in Bay County for new charges, sought a writ of mandamus to compel the Brevard County Sheriff's Office to arrest hi…

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Opinion of the Court
THOMPSON, J.

THOMPSON, J.

Michael Chapman seeks certiorari review of the circuit court’s order denying his petition for writ of mandamus against the Brevard County Sheriffs Office. He sought to compel the sheriffs office to arrest him instead of merely filing a detainer against him. The court denied his writ, stating that Chapman was not entitled to mandamus relief because he was serving a sentence in a different county on a separate charge, which was committed while he was on probation for a Brevard County conviction. We treat the certiorari review as an appeal and affirm.

Chapman was sentenced in Brevard County in 1996 as a youthful offender to two years in prison, followed by four years probation. In 1998, he violated his probation and was sentenced to two years community control, followed by 18 months probation. Chapman subsequently violated his community control and absconded. He was arrested on 29 September 1999 on new charges in Bay County, Florida, for burglary to a structure and principal to burglary of a conveyance. He entered pleas to the Bay County charges and was sentenced to consecutive five-year sentences for the two burglary cases, but concurrent with any sentence imposed for violating community control in Brevard County.

Chapman sought to have the Bre-vard County cases resolved by trial or by plea. However, Brevard County only placed a detainer1 on Chapman; they did not seek to have him arrested and returned for trial. Chapman then filed a petition for writ of mandamus, requesting the circuit court to compel the Brevard Sheriffs Office to perform its duty to arrest him by serving the arrest warrant. The warrants had been issued in the Bre-vard cases on 17 September 1999 based on affidavits of violation of community control.

Citing Norman v. State, 900 So. 2d 702 (Fla. 2d DCA 2005), and Bonner v. State, 866 So. 2d 163 (Fla. 5th DCA 2004), the trial court denied the petition for writ of mandamus, ruling that Chapman was not entitled to mandamus relief while serving a sentence on a separate charge in a different county for an offense committed while he was on Brevard County community control. Chapman seeks certiorari review of this order.

First, certiorari review is inappropriate in this case. Direct appeal is the proper vehicle for appellate review of a mandamus petition. See Mazer v. Orange County, 811 So. 2d 857, 858 (Fla. 5th DCA 2002) (holding that appellate courts generally allow direct review of an order dismissing a mandamus petition).

Therefore, in the interest of judicial economy, we treat Chapman’s petition as an appeal and affirm the trial court’s order. See Fla. R.App. P. 9.315(a).

To be entitled to a writ of mandamus, the petitioner must have a clear legal right to the requested relief, the respondent must have an indisputable legal duty to perform the requested action, and the. petitioner must have no other adequate remedy. Huffman v. State, 813 So. 2d 10, 11 (Fla.2000); Milanick v. Town of Beverly Beach, 820 So. 2d 317, 318 (Fla. 5th DCA 2001).

Chapman contends that respondent has a duty to execute the arrest warrant against him based on section 948.06(1), Florida Statutes, which states that any magistrate may issue a warrant for the arrest of a probationer “returnable forthwith.” However, the arrest warrant in this case does not contain the word “forthwith.” In fact, Chapman acknowledges that a law enforcement officer is not required to execute a warrant at the first opportunity.

More important, Chapman has no personal right to have the arrest warrant executed. The state or governmental entity seeking prosecution is the entity that has a right to the service of the arrest warrant. Chapman has no right to compel the sheriff to use resources to arrest someone in prison being held on a detainer for violating probation.

Furthermore, Chapman is actually seeking to compel the trial court to hold a hearing on the probation violation. As explained in Norman, 900 So. 2d at 703, a court has no ministerial duty to conduct a hearing 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 detainer 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 is no mechanism by which Chapman can compel Brevard County to arrest him.

AFFIRMED.

PLEUS, C.J., and PALMER, J., concur. . "A detainer is a request filed by a criminal justice agency with the institution in which a prisoner is incarcerated, asking the institution either to hold the prisoner for the agency or to notify the agency when release of the prisoner is imminent.” Gethers v. State, 838 So. 2d 504, 507 (Fla.2003) (citing Carchman v. Nash, 473 U.S. 716, 719, 105 S.Ct. 3401, 87 L.Ed.2d 516 (1985)).


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Citator

Cited By

  • Jenkins v. State, 957 So. 2d 20 (Fla. 5th DCA 2007)
    …o a writ of mandamus, the petitioner must have a clear legal right to the requested relief, the respondent must have an indisputable legal duty to perform the requested action, and the petitioner must have no other adequate remedy. Chapman v. State, 910 So. 2d 940, 941 (Fla. 5th DCA 2005). The State argues first that “if there is no warrant, there is no relief that can be granted.” That argument was the basis for the lower court’s dismissal. The court attached a copy of a computer printout from the Volu-sia C…
  • Coldiron v. Seminole Cnty. Sheriff's Dep't, 936 So. 2d 42 (Fla. 5th DCA 2006)
    …of Cities v. Smith, 607 So. 2d 397, 401 (Fla.1992). Instead, a party petitioning for a writ of mandamus must establish a clear legal right to the requested relief, an indisputable legal duty, and have no adequate remedy at law. See Chapman v. State, 910 So. 2d 940, 941 (Fla. 5th DCA 2005). Clearly that has not occurred here. If Coldiron believes that the forfeiture judgment is flawed, he should seek relief pursuant to Florida Rule of Civil Procedure 1.540. We express no opinion on the merits of any such effor…
  • Jerimy P. Smith v. State, 74 So. 3d 156 (Fla. 1st DCA 2011)
    …PER CURIAM. DENIED. See Chapman v. State, 910 So. 2d 940 (Fla. 5th DCA 2005). HAWKES, MARSTILLER, and RAY, JJ., concur.…

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