THE STATE OF FLORIDA, APPELLANT,
v.
LOUIS JAMES WILLIAMS, A/K/A LOUIS JAMES WILLIAM, APPELLEE
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The State appealed a sentencing order imposing a 364-day sentence substantially below the guideline recommendation of seven to nine years. The court addressed whether the State's notice of appeal, filed more than 15 days after sentencing but within 15 days of the trial court's written order explaining the departure from guidelines, was timely filed.
The State's notice of appeal was timely because it was filed within 15 days of the trial court's written order of March 22, 1984, which first set forth the reasons for departure from guidelines. The appeal time does not begin to run until the written statement delineating reasons for departure is filed, not from the initial pronouncement of sentence.
[1] A state's notice of appeal from a sentence outside of the sentencing guidelines is timely if filed within fifteen days of the trial court's written statement of reasons f…
[2] The time for the state to appeal a sentence outside of the sentencing guidelines does not begin to run until a written statement delineating the reasons for departure is…
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Join FLexlaw to unlock all legal intelligence“the propriety vel non of a sentence imposed outside of the recommended guideline range cannot be said to be known until the written reasons for the departure from the guidelines are given. The essence of an appeal under Rule 9.140(c)(l)(J) is not that the trial court departed from the guidelines, but rather that the reasons given by the trial court for departing from the guidelines do not justify the departure.”
Establishes that the appeal clock does not begin to run from the pronouncement of sentence, but from the filing of written reasons for departure
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Join FLexlaw to unlock all legal intelligenceThe trial court imposed a 364-day sentence on March 12, 1984, substantially below the seven-to-nine-year sentence recommended by sentencing guidelines…
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DANIEL S. PEARSON, Judge.
The imposition of a 364-day sentence upon the defendant, substantially below the seven-to-nine-year sentence recommended by the applicable sentencing guidelines, prompted this appeal by the State. The defendant has moved to dismiss the appeal, contending that because the notice of appeal filed on April 3, 1984, was filed more than fifteen days after the rendition of the judgment and sentence on March 12, 1984, we are without jurisdiction.1 The State’s response is that its notice, admittedly not filed within fifteen days of the judgment and sentence, is nonetheless timely, having been filed within fifteen days of the trial court’s order of March 22, 1984, the first writing setting forth the reasons for the departure from the sentencing guidelines.
We agree with the State and deny the defendant’s motion to dismiss.
Florida Rule of Criminal Procedure 3.701 d. 11 requires that “[a]ny sentence outside of the guidelines must be accompanied by a written statement delineating the reasons for the departure.” Where a sentence is imposed below the range recommended by the guidelines, the State is given the right to appeal. See Fla.R.App.P. 9.140(c)(l)(J).
But unlike an appeal from an illegal sentence under Rule 9.140(c)(l)(I), where the illegality is manifest with the mere pronouncement of sentence, the propriety vel non of a sentence imposed outside of the recommended guideline range cannot be said to be known until the written reasons for the departure from the guidelines are given. The essence of an appeal under Rule 9.140(c)(l)(J) is not that the trial court departed from the guidelines, but rather that the reasons given by the trial court for departing from the guidelines do not justify the departure.
Thus, an appeal which precedes the filing of the written statement delineating the reasons for departure is premature.
In the present case, we need not decide whether the requirement of a written statement can be satisfied by the transcription and filing of the trial judge’s recorded oral sentencing statement.2 Her sentencing comments, even if read as reasons for departure, were not in fact transcribed and filed until well after the appeal was lodged in this court; the earliest filed writing which set forth reasons for departure was the trial court’s written order of March 22, 1984. Since the State’s appeal was taken within fifteen days of that order, it was timely.
Motion to dismiss denied.
. In a criminal case, excepting appeals under Florida Rule of Appellate Procedure 9.140(c)(1)(H), the State’s notice of appeal must be filed "with the clerk of the lower tribunal within 15 days of rendition of the order to be reviewed.” Fla.R.App.P. 9.140(c)(2).
. The Second District, see Brady v. State, 457 So. 2d 544 (Fla. 2d DCA 1984); Fleming v. State, 456 So. 2d 1300 (Fla. 2d DCA 1984); Klapp v. State, 456 So. 2d 970 (Fla. 2d DCA 1984); Smith v. State, 454 So. 2d 90 (Fla. 2d DCA 1984); Fourth District, see Harvey v. State, 450 So. 2d 926 (Fla. 4th DCA 1984); and Fifth District, see Burke v. State, 456 So. 2d 1245 (Fla. 5th DCA 1984), have held that a transcript of the trial court’s oral statement of reasons for departure is the functional equivalent of the written statement of reasons because it is equally amenable to appellate review. The First District reads Florida Rule of Criminal Procedure 3.701 d. 11 literally and holds to the view that a written statement must be filed contemporaneously with the pronouncement of sentence, see Roux v. State, 455 So. 2d 495 (Fla. 1st DCA 1984); Jackson v. State, 454 So. 2d 691 (Fla. 1st DCA 1984).
Whether the transcript, rather than the separate written order, is or is not equally amenable to appellate review, nothing less than a filed transcript will fulfill the requirement of a written statement. At least until one or the other is a matter of record, the State’s appeal time does not begin to run.
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State v. Davis, 464 So. 2d 195 (Fla. 3d DCA 1985)…). Reversed and remanded with directions. . Since we address the merits, we do not reach the state’s alternative argument regarding the lack of a written statement required by Florida Rule of Criminal Procedure 3.701 b.6. See State v. Williams, 463 So. 2d 525, 526 n. 2 (Fla. 3d DCA 1985) (denying appellee’s motion to dismiss, establishing that an appeal preceding the filing of a written statement is premature, and declining to decide whether a filed transcript fulfills the requirement of a written statem…
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FOX v. Dist. Court OF Appeal, 553 So. 2d 161 (Fla. 1989)…e reasons for departure, not the sentence, form the basis for the appeal.3 Therefore, according to the state, the time for appeal does not begin to run until the court files its written reasons for departure. The state relies upon State v. Williams, 463 So. 2d 525, 525-26 (Fla. 3d DCA 1985), in which the court held: The essence of an appeal under Rule 9.140(c)(l)(J) is not that the trial court departed from the guidelines, but rather that the reasons given by the trial court for departing from the guidelines…
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State v. Robbie Ealy, 533 So. 2d 1173 (Fla. 2d DCA 1988)…s for departure should be entered simultaneously with the departure sentence or at the least, very shortly thereafter. Failure to do so leads to an unwarranted and wasteful use of judicial resources. We acknowledge conflict with State v. Williams, 463 So. 2d 525 (Fla. 3d DCA 1985). Williams held that the state may appeal within fifteen days of the order stating reasons for departure even if more than fifteen days from the filing of the sentencing order. Because we disagree we find the notice of appeal herei…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Jackson v. State, 454 So. 2d 691 (Fla. 1st DCA 1984)
- Smith v. State, 454 So. 2d 90 (Fla. 2d DCA 1984)
- Harvey v. State, 450 So. 2d 926 (Fla. 4th DCA 1984)
- Brady v. State, 457 So. 2d 544 (Fla. 2d DCA 1984)
- Burke v. State, 456 So. 2d 1245 (Fla. 5th DCA 1984)
- Roux v. State, 455 So. 2d 495 (Fla. 1st DCA 1984)
- Fleming v. State, 456 So. 2d 1300 (Fla. 2d DCA 1984)
- Klapp v. State, 456 So. 2d 970 (Fla. 2d DCA 1984)