VALENZUELA v. STATE

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 DIVISION ONE FILED: 08/28/2012 RUTH A. WILLINGHAM, CLERK BY: sls IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE MELINDA GABRIELLA VALENZUELA, ) ) ) ) ) ) ) ) ) ) ) Plaintiff/Appellant, v. STATE OF ARIZONA, Defendant/Appellee. No. 1 CA-CV 11-0538 DEPARTMENT E Yuma County Superior Court No. S1400CV201000161 DECISION ORDER ACCEPTING SPECIAL ACTION JURISDICTION; DISMISSING AS MOOT The Court, Presiding Judge Patricia K. Norris and Judges Diane M. Johnsen and Jon W. Thompson, has considered Melinda Gabriella Valenzuela s appeal from an order by the superior court on her petition for change of name. In the order at issue, petition the superior court denied the while [Valenzuela] remains in custody with the Arizona Department of Corrections. Because the order from which Valenzuela appeals did not finally dispose of her petition for change of name, but instead was akin to a stay order, we lack jurisdiction over her appeal. See Roeder v. Huish, 105 Ariz. 508, 509-10, 467 P.2d 902, 903-04 (1970) (order arbitration was staying superior interlocutory, court not proceedings appealable); pending Ruesga v. No. 1 CA-CV 11-0538 Yuma County Superior Court No. S1400CV201000161 Kindred Nursing Centers, L.L.C., 215 Ariz. 589, 593, ¶ 12, 161 P.3d 1253, 1257 (App. 2007) ( substance or effect of an order determines its character for appeal purposes ). Nevertheless, we elect to exercise our discretion to accept special action jurisdiction over the matter. See State v. Perez, 172 Ariz. 290, 292, 836 P.2d 1000, 1002 (App. 1992); see also A.R.S. § 12120.21(A)(4) (West 2012) (special action jurisdiction). 1 Although the superior court ruled in advance that Valenzuela could appear telephonically at the hearing on her petition, it denied her petition after she twice failed to call at the appointed time. Valenzuela argues the superior court erred by failing to order corrections officials to allow her to call in for the hearing. See Ariz. Dep t of Econ. Sec. v. Valentine, 190 Ariz. 107, 110, 945 P.2d 828, 831 (App. 1997) (despite minute telephonically entry at allowing hearing, court inmate erred litigant by to failing to appear order Arizona Department of Corrections to grant telephone access to inmate at the time of the hearing). As noted, Valenzuela s however, petition the only superior while 1 court s [Valenzuela] order denied remains in Absent material revision after the relevant date, we cite a statute s current version. 2 No. 1 CA-CV 11-0538 Yuma County Superior Court No. S1400CV201000161 custody with the Arizona Department of Corrections. The Court takes judicial notice that Valenzuela was released from custody on February 28, 2012. By its terms, therefore, the order no longer bars her petition for name change, and Valenzuela now is free to request a new hearing on her petition. Accordingly, upon consideration, IT IS ORDERED accepting special action jurisdiction over the appeal, but dismissing it as moot. /s/ DIANE M. JOHNSEN, Judge 3

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