Noel v. State

Citation127 So.3d 769
Decision Date03 January 2014
Docket NumberNo. 4D10–1765.,4D10–1765.
PartiesJean Claude NOEL, Appellant, v. STATE of Florida, Appellee.
CourtCourt of Appeal of Florida (US)

OPINION TEXT STARTS HERE

Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.

EN BANC

GROSS, J.

Jean Claude Noel was convicted after a jury trial of conspiracy to racketeer and first degree grand theft, arising from an elaborate scheme to steal advance fees from victims who sought to obtain funding for their business projects. We affirm the conviction and write to consider a sentencing issue en banc. We recede from our opinion in the case of one of Noel's co-conspirators, DeLuise v. State, 72 So.3d 248 (Fla. 4th DCA 2011). We hold that, consistent with the Fourteenth Amendmentof the United States Constitution, when deciding what sentence to initially impose, a sentencing judge may consider the entire background of a defendant, including employment history, financial resources, and ability to make restitution. The Constitution does not preclude a judge from actively using the sentencing process to encourage payment of restitution to victims of crimes, nor does it prevent a judge from showing mercy by reducing the severity of a previously imposed legal sentence.

At Noel's sentencing hearing, the trial judge announced that he had read the pre-sentence investigation and letters from both victims and supporters of the defendant. The prosecutor advised the court of the sentences imposed on other co-conspirators by other judges; for example, a defendant who had received little of the proceeds of the scheme, but who provided up front restitution of $210,000 for the victims of the theft, received a sentence of 10 years probation.

The State established that Noel had received at least $108,795 of the stolen proceeds. The judge asked Noel if he was in a position “to make any up front restitution.” Noel indicated that he had been incarcerated for three years, but said “there would be an amount that could be negotiated.” The judge said that he was “not asking [Noel] for a negotiation,” but wanted to know if he was in a position to pay a reasonable amount of “up front” “lump sum” restitution without having his family starve. Noel responded that a lump sum would be “somewhere between” $20,000 to $40,000 “plus other things.”

Asserting that Noel was a sophisticated cog in the conspiracy, the prosecutor argued for a minimum sentence of 15 years. The maximum prison sentence for both first degree grand theft and conspiracy to racketeer is 30 years imprisonment. §§ 812.014(2), 895.03(4), 895.04(1), 775.082(3)(b), Fla. Stat. (2009). The defense attorney requested a sentence at the “low end of the guidelines,” 3.8 years. The trial court noted nine other incidents where Noel was involved with bad checks, stolen property, or deceptive practices.

Before imposing the sentence, the judge voiced a hope that “it accomplishes something [for] these victims that have lost so much as a result of this whole incident.” The judge 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. SeeFla. R. Crim. P. 3.800(c). 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.

Noel contends that his equal protection rights were violated by that portion of the sentence which provided for mitigation if he paid restitution of $20,000 within 60 days. He relies primarily on DeLuise v. State, 72 So.3d 248 (Fla. 4th DCA 2011), which holds that it is fundamental error for a trial judge to offer to mitigate a lawful sentence if a defendant comes up with some restitution for the victims of a crime within 60 days of the sentence.

DeLuise involved the same criminal scheme at issue in this case. The victims suffered substantial losses and the court ordered DeLuise to pay restitution of $1,167,500. DeLuise, 72 So.3d at 250. After pronouncing six concurrent 15 year sentences and two concurrent 10.5 year sentences, the judge in DeLuise said that she would “consider a reduction in the prison sentence” if the defendant came forward with substantial restitution, on the order of $100,000 to $150,000, within sixty days. Id. at 253. We reversed the sentence, holding that the trial court's “offer” was fundamental error and in violation of the Equal Protection Clause. Id. at 252–53. We wrote that the sentence violated “equal protection because it results in harsher punishment for an offender who does not have the means to pay.” Id. at 253.

To reach its conclusion, DeLuise relied primarily upon Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971), and a 1999 Michigan decision 1 without acknowledging the later decided case of Bearden v. Georgia, 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983). DeLuise also did not mention a Florida statute and Rule of Criminal Procedure, which authorized the type of sentence the trial judge imposed. Correct application of the United States Supreme Court precedent and consideration of the importance placed on restitution to victims by Florida law compels the conclusion that the sentence in this case did not give rise to any constitutional violation, much less a fundamental one.

United States Supreme Court Case Law

Because DeLuise relied primarily on Tate v. Short, it is necessary to first examine Tate and the earlier case of Williams v. Illinois, 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970), upon which the Supreme Court relied in deciding Tate. Neither case involved a court's attempt to encourage restitution after imposing a lawful sentence of incarceration. The cases do not justify the extension of them in DeLuise.

In Williams, a defendant received the maximum sentence for “petty theft”—one year imprisonment, a $500 fine, and $5 in court costs. 399 U.S. at 236, 90 S.Ct. 2018. Pursuant to statute, the judgment of conviction directed that if the defendant was “in default of the payment of the fine and court costs at the expiration of the one year sentence,” he should remain in jail to “work off” the monetary obligations at the rate of $5 per day. Id. The effect of the sentence was to allow the defendant “to be confined for 101 days beyond the maximum period of confinement [one year] fixed” by state law. Id. at 236–37, 90 S.Ct. 2018.

The Supreme Court reversed the sentence and held “that the Equal Protection Clause of the Fourteenth Amendment requires that the statutory ceiling placed on imprisonment for any substantive offense be the same for all defendants irrespective of their economic status”; “a State may not constitutionally imprison beyond the maximum duration fixed by statute a defendant who is financially unable to pay a fine.” Id. at 243–44, 90 S.Ct. 2018. The Court was careful to indicate that its decision in Williams did not impinge on the broad discretion of a sentencing judge to impose a sentence within the maximum sentence:

The mere fact that an indigent in a particular case may be imprisoned for a longer time than a non-indigent convicted of the same offense does not, of course, give rise to a violation of the Equal Protection Clause. Sentencing judges are vested with wide discretion in the exceedingly difficult task of determining the appropriate punishment in the countless variety of situations that appear. The Constitution permits qualitative differences in meting out punishment and there is no requirement that two persons convicted of the same offense receive identical sentences. Thus it was that in Williams v. New York, 337 U.S. 241, 247, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949), we said: ‘The belief no longer prevails that every offense in a like legal category calls for an identical punishmentwithout regard to the past life and habits of a particular offender.’

Id. at 243, 90 S.Ct. 2018.

Given this reaffirmation of the broad discretion of a sentencing judge, Williams obviously would not preclude the sentence in this case, which was well within statutory limits. Williams required only that the statutory maximum incarceration for a substantive offense be the same for all defendants regardless of their economic status. It did not require identical punishment for each defendant regardless of circumstances.

Tate addressed the constitutionality of a fine for a non-criminal traffic offense that was converted into incarceration by a defendant's indigency. There, the defendant was fined $425 for traffic offenses which he was unable to pay because he was indigent. Tate, 401 U.S. at 396, 91 S.Ct. 668. He was committed to the “municipal prison farm” to “satisfy the fines at the rate of five dollars for each day,” which required that he serve 85 days. Id. at 396–97, 91 S.Ct. 668. Relying on Williams, the Court held that ‘the Constitution prohibits the State from imposing a fine as a sentence and then automatically converting it into a jail term solely because the defendant is indigent and cannot forthwith pay the fine in full.’ Id. at 398, 91 S.Ct. 668 (quoting Morris v. Schoonfield, 399 U.S. 508, 509, 90 S.Ct. 2232, 26 L.Ed.2d 773 (1970)).

Williams was a case where the defendant received a jail sentence longer than the law allowed because of his indigency. Tate was a case where the applicable statute called for only a fine, but the defendant served jail time because of his indigency. These cases have little application to this case, where Noel was sentenced well within the statutory maximum for the criminal offenses.

Bearden v. Georgia

DeLuise failed to consider the impact of Bearden v. Georgia, 461 U.S. 660, 661, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983), decided over a decade after Williams and Tate.Bearden is significant...

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