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Velazquez v. State

Florida Court of Appeals, Fourth District

December 4, 2019

DELSA VELAZQUEZ, Appellant,
v.
STATE OF FLORIDA, Appellee.

         Not final until disposition of timely filed motion for rehearing.

          Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Barbara A. McCarthy, Judge; L.T. Case No. 11-018997CF10A.

          John Weinberg, West Palm Beach, for appellant.

          Ashley Moody, Attorney General, Tallahassee, and James J. Carney, Senior Assistant Attorney General, West Palm Beach, for appellee.

          Kuntz, J.

         Delsa Velazquez appeals the court's order denying her renewed motion for early termination of probation. When Velazquez pleaded no contest to grand theft in 2012, the original sentencing judge withheld adjudication, placed her on ten years of probation, and ordered her to pay $28, 750.68 in restitution. In 2018, she moved for early termination of probation, arguing that she had paid the full amount of restitution and had not violated her probation.

         The successor court held a hearing on Velazquez's motion and took the matter under advisement, stating that it "need[ed]" the scoresheet before it could rule on the motion, and it "want[ed] to look at the file."

         Two months after the hearing, the court still had not decided the motion, and Velazquez renewed her motion for early termination. The court denied the renewed motion without explanation, which Velazquez now appeals.

         We dismiss the appeal because an order denying early termination of probation is not an appealable order.

         Section 948.05, Florida Statutes (2018), grants a trial court the authority to grant a probationer early termination of supervision. Arriaga v. State, 666 So.2d 949, 950 (Fla. 4th DCA 1996) ("[Section 948.05] requires the court to respond to the facts and circumstances that develop during the term of probation. If the probationer has fulfilled his obligations and has been a 'model probationer,' the interests of justice (not to mention the wise allocation of scarce resources) may require that early termination be considered.").

         But that authority is "a matter of grace," and a court's refusal to exercise it is not appealable. Burgos v. State, 765 So.2d 967, 969 (Fla. 4th DCA 2000) (quoting Ziegler v. State, 380 So.2d 564, 564 (Fla. 3d DCA 1980)); see also Johnston v. State, 202 So.3d 976, 976 (Fla. 1st DCA 2016).

         We note that an appeal of an order denying a request to release a probationer from supervision has been treated as a petition for writ of certiorari. Enea v. State, 171 So.3d 219, 221 (Fla. 5th DCA 2015); cf. Wesner v. State, 843 So.2d 1039, 1039-40 (Fla. 2d DCA 2003) (treating appeal of order denying motion for modification of probation as petition for writ of certiorari). But in Enea, the circuit court was under the mistaken belief that it was prohibited from granting early termination. 171 So.3d at 221-22 (granting petition and remanding for court to consider merits of motion to terminate probation); cf. Wesner, 843 So.3d at 1040 ("Because the basis of the trial court's denial was its mistaken belief that it did not have the legal authority to consider the motion, we treat this appeal as a petition for writ of certiorari and grant the petition.").

         Here, the court recognized its authority but denied the request to grant early termination of supervision. That order is not ...


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