FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit
Court for Highlands County; Peter F. Estrada, Judge.
Joan Westervelt, pro se.
Moody, Attorney General, Tallahassee, and Michael Schaub,
Assistant Attorney General, Tampa, for Appellee.
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.
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.
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.
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."
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
[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