Noel v. State, No. 4D10-1765: Florida’s 4th DCA En Banc Opinion Holds That Trial Judge May Consider Defendant’s Ability To Pay Restitution During Initial Sentencing Proceedings
In an opinion that’s created a lot of discussion among criminal defense and criminal appeals attorneys alike, Florida’s 4th DCA has held, in an en banc opinion, that the trial judge may consider a defendant’s ability to pay restitution when fashioning a sentence. See Noel v. State, 4D10-1765.
Noel was convicted after a jury trial of conspiracy to racketeer and first degree grand theft, arising from a scheme to steal advance fees from victims who sought to obtain funding for their business projects. Noel, slip. op., pg. 1. At the sentencing hearing, the court judge asked Noel if he was in a position to make any up front restitution. Noel stated that he was, and that he could pay between $20,000 to $40,000, “plus other things.” Slip. op., pg. 2. The State requested a sentence of 15 years, while the defense requested a sentence at the low end of the guidelines, 3.8 years. The court sentenced Noel to 10 years in prison followed by 10 years of probation, with the provision that if Noel made restitution of $20,000 within 60 days, his prison sentence would be mitigated to 8 years. As a condition of probation, the court ordered Noel to pay $650,000 in restitution to the victims, with 15% of his net pay going towards restitution. Slip op., pg.2.
In the forcefully written opinion, the majority goes to great lengths to distinguish DeLuise v. State, 72 So. 3d 248 (Fla. 4th DCA 2011), where the 4th DCA held–only two years ago–that it is fundamental error for the court to offer to mitigate a lawful sentence in exchange for the defendant paying some restitution for the victims of a crime within 60 days of the sentence. The court also emphasizes the State’s interest in securing restitution, and declares that the trial judge should always have the ability to impose a sentence which is more lenient than the statutory maximum” for whatever reason.” Noel, slip. op., pgs. 2-11.
While many agree that the judge should have the ability to impose a sentence less than the statutory maximum, the dissenters correctly note that the trial judge cannot simply do so “for whatever reason.” Rather, the court can only consider a defendant’s ability to pay restitution within the parameters of the United States Constitution. And, as noted by the dissenters, the net result of the majority opinion is that a defendant who is unable to pay restitution up front may be sentenced to a longer term of incarceration than a defendant who is able to pay restitution.
This is by no means settled. A review of the 4th DCA docket shows that the Public Defender has filed a motion for rehearing, to which the State of Florida has responded. We’ll have to wait and see what happens next.