2D04-2641 / State v. Higby

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State: Florida

Court: Florida Southern District Court

Docket No: 2D04-2641

Case Date: 04/27/2005

Plaintiff: 2D04-2641 / State

Defendant: Higby

Preview:NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
STATE OF FLORIDA,                                                                     )
)
Appellant,                                                                            )
)
v.                                                                                    )   Case No. 2D04-2641
)
RICKY J. HIGBY,                                                                       )
)
Appellee.                                                                             )
)
Opinion filed April 27, 2005.
Appeal from the Circuit Court for Polk
County; Susan W. Roberts, Judge.
Charles J. Crist, Jr., Attorney General,
Tallahassee, and Susan D. Dunlevy,
Assistant Attorney General, Tampa,
for Appellant.
James Marion Moorman, Public
Defender, and Richard J. Sanders,
Assistant Public Defender, Bartow,
for Appellee.
WALLACE, Judge.
The State appeals the trial court's order granting Ricky J. Higby's motion
to dismiss the charge of failure to return leased equipment in violation of section
812.155, Florida Statutes (2000).   The trial court found in its order that section

812.155(4)                                                                                       (b) creates a mandatory presumption that relieves the State of its burden
to prove an essential element of the offense in violation of the due process clauses of
the federal and Florida Constitutions.   We reverse the order of dismissal, and we
remand this case to the trial court for further proceedings.
The State charged Higby with violating section 812.155(3).   This statute
makes it a third-degree felony for a person who leases property valued at $300 or more
under an agreement to redeliver, to abandon or willfully refuse, with the intent to
defraud, to redeliver the property as agreed.   In his motion to dismiss, Higby challenged
the constitutionality of section 812.155(4)(b), which provides:
In a prosecution under subsection (3), failure to redeliver
the property or equipment within 5 days after receipt of, or
within 5 days after return receipt from, the certified mailing of
the demand for return is prima facie evidence of fraudulent
intent.   Notice mailed by certified mail, return receipt
requested, to the address given by the renter at the time of
rental shall be deemed sufficient and equivalent to notice
having been received by the renter, should the notice be
returned undelivered.
Higby argued that subsection (4)(b) creates an unconstitutional
presumption because it relieves the State of its burden of proving fraudulent intent, an
essential element of the offense of failing to return leased property.   In its order granting
Higby's motion, the trial court adopted the reasoning of another division of the Polk
County Circuit Court in State v. Rygwelski, No. CF02-08449A-XX.   The other division of
the court had already ruled on a similar motion.    The Rygwelski trial court concluded
that section 812.155(4)(b) is analogous to the statute at issue in State v. Brake, 796 So.
2d 522 (Fla. 2001), which the Florida Supreme Court determined created an
unconstitutional presumption.   After reaching this conclusion, the Rygwelski court ruled:
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Similarly, section 812.155(4)(b) uses mandatory
language that failure to redeliver the property "is prima facie
evidence of fraudulent intent."   Obviously the statute was
intended to create a presumption.   Moreover, the statute
creates an unconstitutional mandatory rebuttable presump-
tion.   The statute permits the State to prove the mens rea
element of the offense (fraudulent intent) by proving failure
to redeliver the property.   It cannot be said with substantial
assurance that a person not redelivering property does not
have a valid legal reason.   While circumstances set out in
the statute may constitute evidence of a violation of a
statute, they are not sufficient to create what amounts to a
presumption of guilt that then must be overcome by the
renter.   Mandatory presumptions violate the Due Process
Clause if they relieve the state of the burden of persuasion
on an element of an offense.   Hence, [s]ection
812.155(4)                                                                                    (b), Fla. Stat., is unconstitutional . . .
(Citations omitted.)
Section 812.155(4)(b) provides that the failure to redeliver property within
five days after receipt of, or within five days after return receipt from, the certified
mailing of the demand for return "is prima facie evidence of fraudulent intent."   In State
v. Rygwelski, No. 2D03-3877 (Fla. 2d DCA Apr. 22, 2005), we held that the language in
section 812.155(4)(b) creates a permissive inference, not a mandatory presumption.
The trial court erred when it reached the opposite conclusion.
Because section 812.155(4)(b) creates a permissive inference, Higby
must make an as-applied challenge to its application under the facts of his case for the
trial court to determine whether the presumed fact (fraudulent intent) is rationally
connected to the proven fact (failure to return property within five days of receipt of
demand for return).   Given the procedural posture of this case—the only action taken
was the ruling on the motion to dismiss; the parties have not submitted evidence as to
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the alleged violation—any review by this court of an as-applied challenge is premature
pending further factual development.
For the guidance of the trial court and the parties on remand, the trial court
should address the following question to resolve an as-applied challenge to the
constitutionality of section 812.155(4)(b): If, based on the facts of the case, the
inference is not the sole basis for a finding of fraudulent intent (a required element to
prove guilt of the offense charged), the presumed fact must more likely than not flow
from the basic fact.   If, based on the facts of the case, it is clear that the inference is the
sole basis for a finding of fraudulent intent, the fact proved must be sufficient to support
the inference of guilt beyond a reasonable doubt.
We note that if the trial court were to conclude that section 812.155(4)(b)
is unconstitutional as applied to Higby, dismissal of the information would not be an
appropriate remedy.   In the event the trial court sustains an as-applied challenge to the
statute by Higby, the State would still have the right to take the case to trial without the
benefit of the statutory presumption.
The trial court erred by identifying section 812.155(4)(b) as a mandatory
presumption when, in fact, it is a permissive inference pursuant to controlling Florida
precedent.   Therefore, we reverse the trial court's order granting Higby's motion to
dismiss and remand this case for further proceedings consistent with this opinion.
Reversed and remanded.
WHATLEY and CASANUEVA, JJ., Concur.
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