Ex parte Fletcher

• Citation: 849 So.2d 900
• Parties: Ex parte Earnestine FLETCHER. (In re Earnestine Fletcher v. State).
• Decision Date: 30 March 2001
• Court: Supreme Court of Alabama

849 So.2d 900

Ex parte Earnestine FLETCHER.

(In re Earnestine Fletcher v. State).

1990055.

Supreme Court of Alabama.

March 30, 2001.

R. Scott Anderson, Decatur, for petitioner.

William H. Pryor, Jr., atty. gen., and Sandra J. Stewart, asst. atty. gen., for respondent.

LYONS, Justice.

Earnestine Fletcher was charged with the theft of over $200,000 from the City of Decatur ("the City"), for which she had been formerly employed as a clerk. She pleaded guilty to theft of property in the first degree, a violation of § 13A-8-3(a), Ala.Code 1975.¹ The trial court sentenced Fletcher to 15 years in the penitentiary; it split the sentence, ordering her to serve 48 hours in the county jail, followed by 15 years on probation. In addition, the court ordered her to pay court costs, to pay $50 to the Victims Compensation Fund, and to pay $200,000 in restitution to the City. The court ordered Fletcher to pay the $200,000, plus 12% interest, amortized over 15 years, resulting in a total of $432,061 to be repaid by Fletcher in monthly payments of $2,400.34.

Fletcher moved the trial court to reconsider its restitution order. She argued that under the terms of her plea bargain, she had agreed to pay a total of $200,000 in restitution in monthly payments of $1,112 for 15 years; that she should be required to compensate the City only for the amount of its actual loss; and that the restitution ordered should be based on her ability to pay. The trial court denied Fletcher's motion. She appealed from the restitution order.

The Court of Criminal Appeals, on August 20, 1999, affirmed the restitution order, without an opinion. Fletcher v. State (No. CR-97-1059), 778 So.2d 869 (Ala. Crim.App.1999) (table). We granted certiorari review to determine whether the Court of Criminal Appeals erred in holding that the trial court had properly ordered Fletcher to pay 12% interest on the $200,000 in restitution. We affirm the judgment of the Court of Criminal Appeals in part, reverse it in part, and remand.

I.

Before Fletcher pleaded guilty, she and her attorney had negotiated with the State what is known as a "blind" plea agreement. In essence, Fletcher and the State agreed that she would pay $200,000 in restitution over a period of 15 years, and the State agreed that it would make no recommendation as to her sentence. Her attorney provided the trial court with a document entitled "Restitution Payment Plan for Earnestine Fletcher"; that document showed monthly payments of $1,112 that Fletcher proposed to make from March 1998 through January 2013, plus one final payment in February 2013 of $952, for a total of $200,000. At the hearing on her plea agreement and sentencing, the trial court and the attorneys discussed the plea agreement:

"THE COURT: All right. In this case I understand it's actually a blind plea. There is no recommendation to be made by the State, is that the position of the State; although, you are aware of a proposal being made to the Court and the Court has given its approval to?

"[PROSECUTOR]: As I understand it, Judge, she is putting herself at the mercy of the Court. We do have an agreement as to the amount of restitution. Whatever the sentence may be, we have an agreement that will be set at $200,000.00.

"[DEFENSE COUNSEL]: That's our agreement, Judge."

Fletcher and her attorney signed an "Explanation of Rights and Plea of Guilty" form, commonly known as an Ireland form,² in which she agreed to plead guilty to first-degree theft of property, a Class B felony. In signing that form, Fletcher acknowledged that she was aware of her rights and agreed to waive them.

Fletcher testified that she had worked for the City as a clerk at the Decatur City Hall until January 1997 and that one of her job duties had been to receive money that was paid to the City for various reasons. She further testified that during the last several years of her employment with the City, she took an amount of money in excess of $1,000 that she had received on behalf of the City and that she used that money for her own benefit. In addition, she testified that she was 55 years old and was employed full-time by a local merchant. After Fletcher and her attorney spoke in support of her request for probation, the trial court stated:

"THE COURT: Ms. Fletcher, there are a number of things I want to say about this. It would be very easy for me to send you to prison for a long time because of the intentional nature of this crime and because of the prolonged period over which it occurred, but I'm not going to do that. I'm going to sentence you to a term of imprisonment of fifteen years in the State Penitentiary, which is within the statutory range. I'm going to split that sentence and order that you serve forty-eight hours in the Morgan County jail. I'm going to allow you to serve the balance of the sentence on probation. That's a fifteen-year probation and your lawyer has presented to me a plan of restitution. It's a monster to me, and how you're going to do this, I don't know, but as long as you come by the money honestly and don't steal it from somebody else, I'm going to allow you to make payments of restitution on the $200,000.00 which has been submitted as an agreement; and the statutory rate on interest in this State is twelve percent. If you make monthly—what is the amount of the plan? ...

"[Defense counsel]: $1,112.00.

"THE COURT: $1,112.00 per month. I want you to be very very clear in understanding what I'm telling you. Allowing you to stay on probation is conditioned on these payments being made monthly and timely. There are a number of factors that go into that decision that I considered.... The factors ... that I have to weigh are what is an appropriate punishment, as well as what are the rights of the victim. I firmly believe that I have the rights of the citizens of Decatur to look after as well, and I want them to be paid back. That's a primary factor in my decision. Without an opportunity or without a promise and assurance from you and your lawyer that this restitution is going to be paid, I would send you to prison, and I still may if you let me down. To coin a phrase that is popular that came out of some movie, `show me the money.' I want the money back, and I can't be more clear about that. I want the City of Decatur to have the money back and I want them to be paid interest money in accordance with the statute. As long as you make these payments, as long as you report to the probation officer timely and stay out of trouble, do what the probation officer says, I'm willing to give you the opportunity....

"....

"THE COURT: If I'm here or whoever succeeds me if I'm not, my orders will be clear and they will be perfectly within their right to revoke your probation on this payment. When I looked at your case, it's not your record that would make me want to send you to prison. I guess it's just the nature of this offense. There are a number of folks that I have had to send to the penitentiary previously who were guilty of theft of property in the first degree; some of them for amounts less than yours, but the distinction with you is that you came, not only admitting your guilt, but repentant; the fact that you were not necessarily under investigation and came forward. That is very significant in this decision. I want you to know that, and for that reason, I'm going to take what I think, frankly, is not the easy course and grant the probation and I wish you well. I hope you find gainful employment and pay this back quicker. I haven't borrowed any money lately, but I would hope you could find a better interest rate than twelve percent.... I want you ... to be on probation for fifteen years. If I don't do it that way, the end of your probation is five years and you will never get it paid back in five years. You may and I hope you do, but I don't foresee how you would do it. This is about as steep a mountain as I think one can climb. That's my order, and I wish you well."

At some point after the hearing, the trial court apparently asked Fletcher's attorney to recalculate a 15-year restitution plan that included 12% interest on $200,000. By that plan, Fletcher would need to make monthly payments of $2,400.34 for 15 years. Fletcher then filed what she called a "motion to reconsider," in which she asked the trial court "to reconsider its sentencing order ... regarding the payment of restitution." She stated, in pertinent part:

"1. That on February 5, 1998, the Defendant appeared before this Honorable Court and entered a plea of guilt[y] to the charge of theft in the first degree.

"2. That this plea was blind in nature in that the only agreement Defendant had with the State was the entering of a plea to the charge of Theft I and setting restitution in the amount of $200,000.00.

"3. In [regard] to the payment of restitution, the Defendant, through her attorney, submitted to the Court a payment schedule wherein Defendant was planning to pay $1,112.00 per month for 180 months over 15 years....

"4. That the Court on February 5, 1998, accepted the Defendant's plea of guilt[y] and sentenced the Defendant to 15 years in prison. However, the Court split that sentence and ordered the Defendant to serve 48 hours in the Morgan County Jail and to serve the remainder of the sentence on 15 [years'] probation.

"5. Further, as a condition of probation, the Court ordered the Defendant to pay restitution in the amount of $200,000.00. In regard to this restitution the Court accepted the Defendant's payment plan, but, in addition to these monthly payments ordered the Defendant to pay an additional 12% interest on that amount.

"6. At a 12% rate of interest the Defendant would be required to make 180 monthly payments of $2,400.34....

"....

"10. In order to pay restitution in the Court ordered amount of $2,400.34 alone the Defendant would be required to earn a gross income of $40,005.66 per year or $3,333.80 per month. With her basic living expenses costing...