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Westervelt v. State

Florida Court of Appeals, Second District

July 17, 2019

MARLIE JOAN WESTERVELT, Appellant,
v.
STATE OF FLORIDA, Appellee.

         NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

          Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Highlands County; Peter F. Estrada, Judge.

          Marlie Joan Westervelt, pro se.

          Ashley Moody, Attorney General, Tallahassee, and Michael Schaub, Assistant Attorney General, Tampa, for Appellee.

          SILBERMAN, JUDGE

         Marlie Joan Westervelt appeals from an order denying her motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm.

         By written plea form signed by Westervelt, defense counsel, and the prosecutor, Westervelt pleaded guilty to eight finance-related offenses in exchange for a sentence of ten years in state prison followed by thirty years' probation. Westervelt's plea form set restitution at $1, 165, 811.85 but recited this additional provision:

If, prior to the sentencing date, defendant pays restitution, or places restitution into her attorney's trust account, the State agrees to reduce the amount of time in Florida State Prison as follows: For each $200, 000 paid in restitution, Defendant shall receive one (1) less year in Florida State Prison.
** The prison sentence will not be reduced below five (5) years. Defendant shall be sentenced to at minimum, five (5) years in prison.

         As stated in the plea form, sentencing was postponed for about six weeks for the purpose of conducting a presentence investigation. Westervelt did not attach transcripts of her plea and sentencing hearings to her rule 3.800(a) motion, nor are such transcripts found elsewhere in the record before us. The judgment and sentence reflect an adjudication of guilt and the ten-year incarcerative and thirty-year probationary sentence but do not mention the additional provision. Westervelt did not file a direct appeal.

         In her rule 3.800(a) motion, Westervelt argued that the additional provision on the plea form violates due process and equal protection and that she could not agree to an illegal sentence. The postconviction court denied the motion, ruling that the "potential for sentence reduction was a detail of negotiations between Defendant and the State-it was not a part of Defendant's sentence" and that Westervelt's "sentence of imprisonment was not conditioned upon the payment of any monies."

         Although at first blush recent court decisions concerning the type of arrangement reflected in the additional provision on Westervelt's plea form would seem to be in her favor, we distinguish those decisions based on the limited record before us. The state of the law was recently summarized by this court:

[I]n Noel v. State, 191 So.3d 370, 375 (Fla. 2016), our supreme court reviewed the purpose of restitution. It looked at U.S. Supreme Court cases holding that to impose a longer sentence because a defendant cannot pay restitution violates an indigent defendant's due process rights. After considering these precedents, our supreme court found that the length of Noel's sentence was "expressly conditioned on whether or not Noel paid the [restitution] sum within sixty days." Id. at 379. Because Noel lacked the resources to make the restitution, he effectively received an increase of two years' incarceration to his sentence. "This automatic deprivation of two years of Noel's freedom is 'contrary to the fundamental fairness required by the Fourteenth Amendment.'" Id. (quoting Bearden v. Georgia, 461 U.S. 660, 673, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983)). The Noel court extended the Bearden holding to Noel's circumstances by reasoning that "a sentence ...

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