STATE OF FLORIDA, APPELLANT,
v.
ROBBIE EALY, APPELLEE
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An appeal of a sentence departure must be filed within fifteen days of the filing of the sentencing order, regardless of when written reasons for departure are provided.
The state appealed a downward departure sentence more than fifteen days after the sentencing order was filed, arguing the appeal was timely because wr…
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PER CURIAM.
This appeal is taken by the state more than fifteen days after the filing of the written sentence departing downward from the applicable guidelines range. The state contends that the appeal is nonetheless timely because the trial judge has not yet entered written reasons for the downward departure.
The state argues that the sentence is not rendered until the order giving the written reasons for departure is entered. Also, it is pointed out that without written reasons the state cannot attack the departure sentence on the merits.
The appellate rules provide that an order is rendered when signed by the trial judge, reduced to writing, and filed in the clerk’s office. Fla.R.App.P. 9.020(g). Thus, the sentence, which is the order being appealed herein, should have been appealed within fifteen days of the time it was filed in the clerk’s office. An order stating reasons for departure, while relevant to an appeal raising guidelines issues, is not the order from which the state or defendant may appeal.
The failure to give written reasons within a short length of time is itself reversible error. See Green v. State, 527 So. 2d 277 (Fla. 2d DCA 1988). As the state points out, however, the failure to enter an order with written reasons for departure may necessitate an appeal on the merits if written reasons are given after reversal. Written reasons 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 herein untimely. Accordingly, this appeal is hereby dismissed.
SCHEB, A.C.J., and HALL and THREADGILL, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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FOX v. Dist. Court OF Appeal, 553 So. 2d 161 (Fla. 1989)…peal from an illegal sentence or from a sentence imposed outside the range recommended by the guidelines authorized by section 921.001. The sentence, rather than the written reasons for departure, constitutes the final order appealed. State v. Ealy, 533 So. 2d 1173 (Fla. 2d DCA 1988). There is no right to appeal from an order stating reasons for departure. Id. The right to appeal vests immediately when an illegal or departure sentence is pronounced. See Mitchell v. State, 458 So. 2d 10 (Fla. 1st DCA 1984), rev…
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State v. McCRAY, 544 So. 2d 313 (Fla. 2d DCA 1989)…bation and community control. The state filed its notice of appeal on December 21, 1987, which identified the December 14, 1987, order of written reasons for the guidelines departure as the subject of the appeal. Appellee, relying on State v. Ealy, 533 So. 2d 1173 (Fla. 2d DCA 1988), contends that the notice of appeal was untimely filed. In Ealy, this court held that the state’s notice of appeal, which was filed more than fifteen days after the entry of the defendant’s departure sentence, was untimely even th…
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State v. Hieber, 541 So. 2d 1208 (Fla. 2d DCA 1988)…ntered. Because it is the sentencing itself which triggers the time for filing an appeal, and not the subsequent entry of the departure order, the state’s notice is untimely and this court lacks jurisdiction to entertain their appeal. State v. Ealy, 533 So. 2d 1173 (Fla. 2d DCA 1988). As in Ealy, we acknowledge that this result conflicts with State v. Williams, 463 So. 2d 525 (Fla. 3d DCA 1985). APPEAL DISMISSED. SCHEB, A.C.J., and DANAHY and HALL, JJ., concur.…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Williams, 463 So. 2d 525 (Fla. 3d DCA 1985)
- Osby Alphonso Green, Jr. v. State, 527 So. 2d 277 (Fla. 2d DCA 1988)