Opinion
No. 75-286.
April 30, 1976.
Appeal from Circuit Court, Orange County; Peter M. deManio, Judge.
Richard L. Jorandby, Public Defender, and Frank B. Kessler, Asst. Public Defender, West Palm Beach, for appellant.
Robert L. Shevin, Atty. Gen., Tallahassee, and Paul H. Zacks, Asst. Atty. Gen., West Palm Beach, for appellee.
Affirmed.
CROSS and OWEN, JJ., concur.
DOWNEY, J., dissents, with opinion.
Appellant pleaded guilty to one count of first degree murder and one count of second degree murder. Judgment and sentence was rendered on December 11, 1975.
On January 7, 1976, appellant filed a pro se "Motion for Appeal" in which he petitioned the court to modify his life sentence by suspending sentence and imposing a period of probation because "petitioner has a girl friend who has a year and a half (1 1/2) year old child to support" and his mother and sister are also in need of his support. The trial court treated this motion as one for modification of sentence and denied it by order rendered January 13, 1976.
On February 17, 1976, appellant filed a notice of appeal to review the judgment and sentence of December 9, 1975 (rendered December 11, 1975).
If we had jurisdiction to reach the merits of this appeal I would concur in an affirmance. However, resisting the temptation to overlook the jurisdictional deficiency as a matter of expedition, I would dismiss the appeal for lack of jurisdiction.
The notice of appeal was untimely from either the judgment and sentence rendered December 11, 1975, or the order denying appellant's motion to modify his sentence. The only basis upon which the appeal would be timely is to treat the "Motion for Appeal" as a proper notice of appeal. But the purpose of that motion was to petition the trial court to modify the sentence, clearly a prerogative of the trial court. In no stretch of the imagination was it intended to seek appellate review, unless use of the word "apeal" suffices.
Accordingly, I would dismiss the appeal as untimely.