Opinion
No. 87-3409.
August 24, 1988. Rehearing Denied October 18, 1988.
Appeal from the Circuit Court, Polk County, Robert A. Young, Acting J.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Lauren Hafner Sewell, Asst. Atty. Gen., Tampa, for appellant.
James Marion Moorman, Public Defender, and D.P. Chanco, Asst. Public Defender, Bartow, for appellee.
ON MOTION TO DISMISS APPEAL
The court on its own motion entered an order to show cause to the state why this appeal should not be dismissed for being untimely filed. The state responded that the appeal was timely filed from the date of the entry of written reasons for the downward departure, State v. Williams, 463 So.2d 525 (Fla. 3d DCA 1985).
In Williams the Third District held that because the essence of an appeal by the state pursuant to Florida Rule of Appellate Procedure 9.140(c)(1)(J) is the departure by the trial court from the recommended guidelines range for invalid reasons, the propriety of such a departure sentence cannot be known until the written reasons for departure are given. Thus, the Third District held that an appeal filed by the state more than fifteen days from the filing of the judgment and sentence, but within fifteen days of the filing of the written reasons for departure, was timely.
Even if we were to agree with Williams, it is not applicable to the instant case because the record reveals that the scoresheet used at the appellant's sentencing hearing and filed with the appellant's judgment and sentence includes written reasons for departure. Consequently, because the state did not file its notice of appeal of this cause within fifteen days of the filing of the appellant's judgment and sentence, we do not have jurisdiction to hear this appeal.
Accordingly, this appeal is dismissed.
SCHOONOVER, A.C.J., and FRANK, J., concur.