On a controversial 7-5 split, the full Fourth District Court of Appeal has upheld a 10-year prison sentence for a Miami man convicted of criminal racketeering and grand theft based on his failure to pay speedy restitution.

The majority receded in part from a 2011 opinion involving a co-defendant and certified a conflict with the Fifth District to the Florida Supreme Court.

Jean Claude Noel was one of seven people charged in a scheme to collect more than $1.2 million in advance fees for loan brokering from victims in several states. He was sentenced in 2010.

In the 2011 opinion, the Fourth District reversed the sentence of co-conspirator Ralph DeLuise. The trial judge told DeLuise a reduction in his sentence would be considered if he paid substantial restitution—$100,000 to $150,000—within 60 days.

The Fourth District reversed DeLuise’s sentence, holding the court’s offer was fundamental error and violated the equal protection clause of the U.S. Constitution.

Similarly, Noel was told that if he paid $20,000 within 60 days, his prison sentence would be reduced to eight years. In reconsidering its posture, the full Fourth District said that a 1995 state law made the victim’s loss the sole consideration for restitution.

“The defendant’s financial resources or ability to pay does not have to be established,” Judge Robert Gross wrote for the majority Wednesday.

Judges Carole Taylor and Cory Ciklin wrote separate dissents, both concurring with each other.

“It is well-established that the federal Constitution prohibits imposing a longer term of imprisonment based solely on a defendant’s poverty,” Taylor wrote.

Ciklin added, “While I have no difficulty whatsoever with judicial attempts to recover as much restitution money as possible from the pockets of convicted swindlers, the safeguards built into our system of justice must be vigilantly preserved.”

Gross said the dissents would hurt restitution in the criminal justice system.

“Restitution would become subject to a ‘don’t ask, don’t tell’ jurisprudence of unwritten policies, where prosecutors negotiate behind the scenes for restitution without involving the court except by a ‘wink and a nod’ at the sentencing hearing where unwritten policies are ‘understood,’” Gross wrote.