ANTONIO KIRKLAND, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Antonio Kirkland challenges a trial court's post-sentencing order increasing restitution from $200 to an unspecified higher amount. The Florida appellate court held that the trial court lacked authority to enhance a legal sentence by modifying the restitution amount, particularly without notice and an opportunity for Kirkland to be heard or withdraw his plea.
The trial court erred by increasing the restitution amount. Once a defendant voluntarily and intelligently agrees to a plea bargain and is sentenced accordingly, the trial court cannot enhance the legal sentence. An increase in restitution, as part of a legal sentence, constitutes an impermissible enhancement, particularly when the defendant was not given notice and an opportunity to be heard as required by due process.
[1] A plea agreement, even if not explicitly labeled as such, may be established by the colloquy between the parties and the defendant's subsequent sentencing.
[2] A defendant cannot seek to change portions of a sentence after voluntarily and intelligently agreeing to a plea bargain and being sentenced accordingly.
Previewing 2 of 6 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“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”
Establishes that plea agreements are binding and cannot be modified post-sentencing without allowing withdrawal of the plea
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Join FLexlaw to unlock all legal intelligenceKirkland was charged with grand theft of an automobile. He entered a plea of nolo contendere with an agreed disposition: three years in the Department…
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RYDER, Judge.
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. There fore, 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 motion for modification. Again, the record does not indicate that Kirkland was given notice or an opportunity to be heard.
The final issue is whether the increase of restitution constitutes an enhancement of a legal sentence. In the instant case, a complete legal sentence was imposed. According to Faber v. State, 409 So. 2d 71 (Fla. 3rd DCA 1982), rule 3.800(a) does not authorize the enhancement of a legal sentence. This case does not fall under Grice v. State, 528 So. 2d 1347 (Fla. 1st DCA 1988), because the sentence imposed in the instant case is not an incomplete sentence. Therefore, we are of the opinion that an increase in the amount of restitution, which is a part of a legal sentence, is an impermissible enhancement. We are aware that the first district in Johnson v. State, 502 So. 2d 1291 (Fla. 1st DCA 1987), has held that imposition of court costs as a condition of probation without any increase in the term of jail time was not an enhancement of punishment. To that extent, we recognize that we may very well be in conflict.
Accordingly, we quash the trial court’s order increasing the amount of restitution, and remand with instructions to the trial court to reinstate the original order. Reversed and remanded.
SCHOONOVER, C.J., and THREADGILL, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Regueiro v. State, 619 So. 2d 463 (Fla. 4th DCA 1993)…. Id. at 821-22. See also Johnson v. State, 502 So. 2d 1291 (Fla. 1st DCA 1987) (imposition of costs of probation 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 was a legal sentence). The supreme court in Morganti did not rule on the issue of whether a prison term combi…
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Blasco v. State, 601 So. 2d 1264 (Fla. 3d DCA 1992)…ilable if the order to make restitution resulted from a negotiated plea which was voluntarily and intelligently accepted by the defendant, as in the instant case. See Pollock v. Bryson, 450 So. 2d 1183 (Fla. 2d DCA 1984); see also Kirkland v. State, 575 So. 2d 1315 (Fla. 2d DCA 1991); Godfrey v. State, 506 So. 2d 1158 (Fla. 3d DCA 1987); Bass v. State, 473 So. 2d 1367 (Fla. 1st DCA 1985). This exception has been firmly established and is based upon the underlying rationale that the defendant should not be enco…
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Bradley v. State, 602 So. 2d 980 (Fla. 3d DCA 1992)…rt complied with the requirements of Fresneda v. State, 347 So. 2d 1021 (Fla.1977) and afforded the defendant the required notice of the proposed restitution order and the required hearing as to the amount of restitution. See also Kirkland v. State, 575 So. 2d 1315 (Fla. 2d DCA 1991); Kroenke v. State, 366 So. 2d 46 (Fla. 2d DCA 1978), cert. denied, 374 So. 2d 99 (Fla.1979). For the foregoing reasons, we affirm the order of restitution.…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Fresneda v. State, 347 So. 2d 1021 (Fla. 1977)
- Farber v. State, 409 So. 2d 71 (Fla. 3d DCA 1982)
- DeWITT v. Rollin W. Zimmerman, 366 So. 2d 46 (Fla. 4th DCA 1978)
- LaBAISSIERE v. State, 429 So. 2d 96 (Fla. 2d DCA 1983)
- Johnson v. State, 502 So. 2d 1291 (Fla. 1st DCA 1987)
- Fisher v. Fisher, 450 So. 2d 1183 (Fla. 2d DCA 1984)
- Pollock v. Honorable Fred L. Bryson, 450 So. 2d 1183 (Fla. 2d DCA 1984)
- Schomers v. State, 528 So. 2d 1347 (Fla. 2d DCA 1988)
- Grice v. State, 528 So. 2d 1347 (Fla. 1st DCA 1988)