Kirkland v. State, 89-02174
| Citation | 16 Fla. L. Weekly 494,575 So.2d 1315 |
| Decision Date | 13 February 1991 |
| Docket Number | No. 89-02174,89-02174 |
| Parties | 16 Fla. L. Weekly 494 Antonio KIRKLAND, Appellant, v. STATE of Florida, Appellee. |
| Court | Court of Appeal of Florida (US) |
James Marion Moorman, Public Defender, Bartow and Allyn Giambalvo, Asst. Public Defender, Clearwater, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee and Dell H. Edwards, Asst. Atty. Gen., Tampa, for appellee.
Antonio Kirkland (Kirkland) challenges the trial court's order which increased the amount of restitution Kirkland was required to pay under his original sentence. Kirkland was charged with grand theft of an automobile. Subsequently, Kirkland entered a plea of nolo contendere with the understanding that he would receive three years in the Department of Corrections, followed by one year of probation as a youthful offender, and that he would be required to make restitution in the amount of $200.00. Kirkland was then sentenced as agreed. We agree that the trial court erred by enhancing this legal sentence.
Three issues require discussion. First, whether the agreement between the state and Kirkland constitutes a plea agreement. Second, whether the trial court can enhance the restitution portion of a legal sentence without giving Kirkland notice and an opportunity to be heard. Third, whether Florida Rule of Criminal Procedure 3.800(a) allows the trial court to enhance a legal sentence.
First, while the term "plea agreement" does not appear in the record, the colloquy between the parties supports the fact that there was an agreement. Therefore the issue is whether the state can seek to modify that sentence. This court has held that once a defendant voluntarily and intelligently agrees to a plea bargain and is sentenced accordingly, the defendant cannot then seek to have certain portions of the sentence changed, even if the sentence is illegal. Pollock v. Bryson, 450 So.2d 1183 (Fla. 2d DCA 1984). Furthermore, if the state sought to have the sentence changed, it is required to give the defendant notice and an opportunity to withdraw his plea. See LaBaissiere v. State, 429 So.2d 96 (Fla. 2d DCA 1983). There is no support in the record that Kirkland was ever given the opportunity to withdraw his plea.
The second issue is whether Kirkland's due process rights were violated because he was not given notice or an opportunity to be heard regarding the increase of restitution. The Florida Supreme Court has held that before restitution can be ordered the defendant must be given notice of the proposed restitution and given an opportunity to be heard as to the amount. Fresneda v. State, 347 So.2d 1021 (Fla.1977). See also Kroenke v. State, 366 So.2d 46 (Fla. 2d DCA 1978). In the instant case, the increase was based on the state's ...
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Regueiro v. State
...was not an enhancement on resentencing despite the fact that original sentence did not have probation term); but see Kirkland v. State, 575 So.2d 1315 (Fla.2d DCA 1991) (increase in amount of restitution is an impermissible enhancement of original sentence despite the fact that resentence w......
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People v. Shepard, 97CA2274.
...in the amount of restitution ordered also violates the constitutional prohibition against double jeopardy. See Kirkland v. State, 575 So.2d 1315 (Fla.Dist.Ct.App.1991) (increase in amount of restitution as a part of a legal sentence is an impermissible enhancement); Harris v. State, supra (......
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Demcak v. State, s. 92-820
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Bradley v. State, 91-1866
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