STATE v. HIGBY

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Docket Number

No. 2D04-2641.

Attorney(S)

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.

Judges

Douglas A. Wallace

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Smart Summary

Factual and Procedural Background

The State of Florida charged Ricky J. Higby with violating section 812.155(3) of the Florida Statutes (2000), which criminalizes the failure to redeliver leased property valued at $300 or more with the intent to defraud. Higby moved to dismiss the charge, challenging the constitutionality of section 812.155(4)(b), which creates a presumption of fraudulent intent based on failure to redeliver property within five days of a certified mailing demand. The trial court granted Higby's motion, finding that the statute created a mandatory presumption that relieved the State of its burden of proof in violation of due process. The State appealed this dismissal.

Legal Issues Presented

Whether section 812.155(4)(b) of the Florida Statutes creates a mandatory presumption that unconstitutionally relieves the State of its burden to prove fraudulent intent, an essential element of the offense.
If the statute creates a permissive inference rather than a mandatory presumption, whether Higby may raise an as-applied constitutional challenge under the facts of his case.

Arguments of the Parties

Appellee (Higby)'s Arguments

Section 812.155(4)(b) creates an unconstitutional mandatory presumption that failure to redeliver leased property within five days after demand is prima facie evidence of fraudulent intent.
This presumption relieves the State of its burden to prove fraudulent intent, violating the due process clauses of the federal and Florida Constitutions.
The statute improperly shifts the burden of proof to the defendant to rebut the presumption of guilt.

Appellant (State)'s Arguments

The statute creates a permissive inference, not a mandatory presumption.
The trial court erred in finding the statute unconstitutional on its face.
An as-applied challenge is appropriate once factual development occurs to determine if the inference is rationally connected to proven facts.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
State v. Brake, 796 So.2d 522 (Fla. 2001)	Determination that a statute creating a mandatory rebuttable presumption that shifts the burden of proof violates due process.	The trial court below relied on Brake to conclude section 812.155(4)(b) was unconstitutional; this court distinguished and rejected that conclusion, finding the statute creates a permissive inference instead.
State v. Rygwelski, 899 So.2d 498 (Fla. 2d DCA 2005)	Interpretation that section 812.155(4)(b) creates a permissive inference rather than a mandatory presumption.	This court followed Rygwelski in holding the statute does not create a mandatory presumption and that the trial court erred in dismissing the charge on constitutional grounds.

Court's Reasoning and Analysis

The court analyzed the language of section 812.155(4)(b), which states that failure to redeliver property within five days after a certified mailing demand is "prima facie evidence" of fraudulent intent. The court distinguished between a mandatory presumption and a permissive inference, concluding that the statute creates the latter. A permissive inference allows, but does not require, the factfinder to infer fraudulent intent from the failure to redeliver. As such, it does not relieve the State of its burden to prove every element beyond a reasonable doubt.

The trial court's contrary conclusion was based on an analogy to a prior case (State v. Brake) involving a mandatory rebuttable presumption, which the Florida Supreme Court found unconstitutional. However, this court found that section 812.155(4)(b) does not impose a mandatory presumption but a permissive inference, consistent with controlling precedent.

The court further held that Higby must raise any constitutional challenge as applied to the facts of his case once factual development occurs, as a facial challenge was premature at the motion to dismiss stage. The court provided guidance for the trial court on remand to evaluate whether the inference is rationally connected to the proven facts and whether it can support a finding of fraudulent intent beyond a reasonable doubt.

Holding and Implications

The court reversed the trial court's order granting the motion to dismiss and remanded the case for further proceedings consistent with the opinion.

The direct effect of this decision is that the charge against Higby will proceed, and the trial court will be tasked with addressing any as-applied constitutional challenges after factual development. The opinion clarifies that section 812.155(4)(b) creates a permissive inference rather than an unconstitutional mandatory presumption, thereby reaffirming the State's burden to prove fraudulent intent. No new precedent was set beyond this clarification, and the State retains the right to prosecute without the statutory presumption if it is found unconstitutional as applied.

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STATE of Florida, Appellant, v. Ricky J. HIGBY, 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:

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 presumption. 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, 899 So.2d 498 (Fla. 2d DCA 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 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.