EDMUND M. ABORDO and CEDRIC AH SING v. WARDEN TODD THOMAS

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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 FILED BY CLERK JUL 27 2012 COURT OF APPEALS DIVISION TWO IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION TWO EDMUND M. ABORDO and CEDRIC AH SING, Petitioners/Appellants, v. TODD THOMAS, Warden, Saguaro Correctional Center-Eloy, Respondent/Appellee. ) ) ) ) ) ) ) ) ) ) ) ) ) 2 CA-HC 2012-0002 DEPARTMENT A MEMORANDUM DECISION Not for Publication Rule 28, Rules of Civil Appellate Procedure APPEAL FROM THE SUPERIOR COURT OF PINAL COUNTY Cause No. S1100CV201200072 Honorable Boyd T. Johnson, Judge DISMISSED Edmund M. Abordo Cedric Ah Sing Struck, Wieneke & Love, P.L.C. By Daniel P. Struck Eloy In Propria Persona Chandler and Daniel M. Louie, Hawaii Attorney General By Lisa M. Itomura Honolulu, HI Attorneys for Respondent/Appellee B R A M M E R, Judge. ¶1 Edmund Abordo and Cedric Ah Sing appeal from the trial court s denial of their application for a writ of habeas corpus, in which they sought release from custody. For the following reasons, we dismiss their appeal. ¶2 Abordo and Sing currently are incarcerated in a private corrections facility, Corrections Corporation of America (CCA), in Eloy, Arizona, apparently related to sentences imposed in Hawaii. In January 2012, the trial court denied Abordo s and Sing s application for writ of habeas corpus, in which they claimed their confinement in Arizona was illegal because there was no contract between CCA and Hawaii. Noting, inter alia, that Abordo and Sing had failed to present a verified pleading for filing as required by A.R.S. § 13-4122, the court ordered the clerk to assign a habeas corpus cause number to the file and dismissed the application without prejudice, giving Abordo and Sing the opportunity to refile it. Instead of filing a new, verified application, they filed a Motion in Opposition to the Court Clerks [sic] Answering of Petitioners Writ of Habeas Corpus pursuant to [A.R.S.] § 13-4125, which the court treated as a motion for reconsideration and denied. ¶3 On appeal, Abordo and Sing contend the trial court erred by dismissing their writ of habeas corpus and opposition motion. The state argues the court s dismissal of the application without prejudice is not an appealable order. We agree. A dismissal without prejudice is not a final judgment and therefore generally is not 2 appealable.1 McMurray v. Dream Catcher USA, Inc., 220 Ariz. 71, ¶ 4, 202 P.3d 536, 539 (App. 2009). Because the order dismissing Abordo s and Sing s application without prejudice is not a final judgment, the appeal of that order must be dismissed. See L.B. Nelson Corp. of Tucson v. W. Am. Fin. Corp., 150 Ariz. 211, 217, 722 P.2d 379, 385 (App. 1986). ¶4 For the reasons stated herein, this appeal is dismissed. /s/ J. William Brammer, Jr. J. WILLIAM BRAMMER, JR., Judge CONCURRING: /s/ Joseph W. Howard JOSEPH W. HOWARD, Chief Judge /s/ Peter J. Eckerstrom PETER J. ECKERSTROM, Presiding Judge 1 Dismissal of an action without prejudice is appealable: (1) when the filing of another lawsuit is barred by the statute of limitations, McMurray v. Dream Catcher USA, Inc., 220 Ariz. 71, ¶ 4, 202 P.3d 536, 539 (App. 2009); or (2) when the dismissal order in effect determines the action and prevents judgment from which an appeal might have been taken, A.R.S. § 12-2101(A)(3). Here, there is no suggestion the statute of limitations bars the refiling of the claim, and it is clear the trial court intended the parties to refile their petition in compliance with the appropriate statutes. 3

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