Opinion
No. 64461.
December 15, 1983.
Original Proceedings — Florida Rules of Appellate Procedure.
John R. Beranek, Chairman, Appellate Rules Committee, West Palm Beach, for petitioner.
Because of the enactment of section 921.001, Florida Statutes (1983), effective October 1, 1983, and Rules of Criminal Procedure 3.710 and 3.988, also effective October 1, 1983, the Florida Appellate Rules Committee recommends an emergency amendment to Rule 9.140. That statute and Criminal Rule 3.710 authorize an appeal, both by the state and by the defendant, from a sentence imposed outside the range recommended by the sentencing guidelines. While Rule of Appellate Procedure 9.140(b)(1)(E) adequately allows a defendant to appeal from such a sentence, no rule clearly authorizes the state to do so.
Accordingly, on an interim basis subject to further review and comments from interested parties, Rule 9.140, Florida Rules of Appellate Procedure, is hereby amended by adding a provision to the existing rule so that it shall now read:
Rule 9.140. Appeal Proceedings in Criminal Cases.
(a) Applicability. Appeal proceedings in criminal cases shall be as in civil cases except as modified by this rule.
(b) Appeals by Defendant.
(1) Appeals Permitted. A defendant may appeal:
(A) A final judgment adjudicating guilt;
(B) An order granting probation, whether or not guilt has been adjudicated;
(C) Orders entered after final judgment or finding of guilt, including orders revoking or modifying probation;
(D) An illegal sentence; and
(E) A sentence when required or permitted by general law.
A defendant may not appeal from a judgment entered upon a plea of guilty; nor may a defendant appeal from a judgment entered upon a plea of nolo contendere without an express reservation of the right of appeal from a prior order of the lower tribunal, identifying with particularity the point of law being reserved.
(2) Commencement. The defendant shall file the notice prescribed by Rule 9.110(d) with the clerk of the lower tribunal at any time between rendition of a final judgment and 30 days following the entry of a written order imposing sentence. Copies shall be served on the State Attorney and Attorney General.
* * * * * *
(c) Appeals by the State.
(1) Appeals Permitted. The State may appeal an order:
(A) Dismissing an indictment or information or any count thereof;
(B) Suppressing before trial confessions, admissions or evidence obtained by search and seizure;
(C) Granting a new trial;
(D) Arresting judgment;
(E) Discharging a defendant pursuant to Fla.R.Crim.P. 3.191;
(F) Discharging a prisoner on habeas corpus;
(G) Adjudicating a defendant incompetent or insane;
(H) Ruling on a question of law when a convicted defendant appeals his judgment of conviction; and may appeal
(I) An illegal sentence;
(J) A sentence imposed outside the range recommended by the guidelines authorized by Section 921.001, Florida Statutes (1983), and Florida Rule of Criminal Procedure 3.710.
(2) Commencement. The State shall file the notice prescribed by Rule 9.110(d) with the clerk of the lower tribunal within 15 days of rendition of the order to be reviewed; provided that in an appeal by the State pursuant to Rule 9.140(c)(1)(H), the State's notice shall be filed within 10 days of service of defendant's notice. Copies shall be served on the defendant and the attorney of record. An appeal by the State shall stay further proceedings in the lower tribunal only by order of the lower tribunal.
(3) Briefs. The State's initial brief shall be served within 80 days of filing the notice. Additional briefs shall be served as prescribed by Rule 9.210.
It is so ordered.
ALDERMAN, C.J., and ADKINS, BOYD, OVERTON, EHRLICH and SHAW, JJ., concur.