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Hill v. State

Court of Appeals of Arizona, Second Division, Department A

July 16, 2013

ISIAH HILL, Petitioner/Appellant,
v.
THE STATE OF ARIZONA, Respondent/Appellee.

Not for Publication Rule 28, Rules of Civil Appellate Procedure

APPEAL FROM THE SUPERIOR COURT OF PINAL COUNTY Cause No. S1100CV201202893 Honorable Bradley M. Soos, Judge Pro Tempore.

Isiah Hill Florence In Propria Persona.

MEMORANDUM DECISION

GARYE L. VÁSQUEZ, Presiding Judge.

¶1 Isiah Hill appeals from the trial court's dismissal without prejudice of his petition for writ of mandamus, in which he sought release from custody. Although Hill asserts jurisdiction is proper "pursuant to A.R.S. §§ 12-120, et seq. and 12-2101, " this court "has an independent duty to determine whether it has jurisdiction over an appeal." McMurray v. Dream Catcher USA, Inc., 220 Ariz. 71, ¶ 4, 202 P.3d 536, 539 (App. 2009). A dismissal without prejudice is not an appealable order where, as here, it "is not a final determination of the controversy on its merits, and is no bar to the prosecution of another suit timely commenced, founded upon the same cause of action." State ex rel. Hess v. Boehringer, 16 Ariz. 48, 51, 141 P. 126, 127 (1914); cf. Garza v. Swift Transp. Co., 222 Ariz. 281, ¶ 15, 213 P.3d 1008, 1011 (2009) (noting exception to final judgment rule, codified in § 12-2101(A)(3), where non-final order "'in effect determines the action, ' as any refiled action would be barred" by statute of limitations), quoting McMurray, 220 Ariz. 71, ¶ 4, 202 P.3d at 539. Because the trial court's order dismissing Hill's petition without prejudice is not appealable, we lack jurisdiction to consider his appeal. McMurray, 220 Ariz. 71, ¶ 4, 202 P.3d at 539.

¶2 Accordingly, this appeal is dismissed.

CONCURRING: JOSEPH W. HOWARD, Chief Judge, MICHAEL MILLER, Judge.


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