Florida/Georgia Personal Injury & Workers Compensation

...We also address the first point raised on appeal and in the original rule 3.850 motion. Appellant alleged that his trial attorney provided ineffective assistance by not moving to dismiss Count II of the information, charging him with failure to return leased property pursuant to section 812.155, Florida Statutes. Appellant argued that he could not be convicted under this statute because the lease agreement did not include the notice required by section 812.155(6), and if he had known this count could have been dismissed, he would not have accepted the State's plea offer and would have elected to go to trial....

...Alfreda Ellsworth appeals her judgment and sentence for failure to redeliver hired or leased personal property, arguing that the trial court erred in denying her motion to dismiss. Ellsworth asserted in her motion that her lease agreement did not contain the language necessary to maintain a prosecution pursuant to section 812.155(6), Florida Statutes (2009). 1 We agree with Ellsworth that her motion to dismiss should have been granted and we reverse. Section 812.155(6) provides as follows: NOTICE REQUIRED....

...l property or equipment upon expiration of the rental period and failure to pay all amounts due (including costs for damage to the property or equipment) are evidence of abandonment or refusal to redeliver the property, punishable in accordance with section 812.155, Florida Statutes....

...The agreement provides as follows: “Failure to return rental property or equipment upon expiration of the rental period and failure to pay all amounts due (including costs for the damage to the property or equipment) are prima facie evidence of intent to defraud, punishable in accordance with section 812.155, Florida Statutes.” (Emphasis added.) We note that section 812.155(6) was amended in 2006, but the rental agreement tracks the language required by the previous version of the statute....

...nt as agreed, shall, upon conviction, be guilty of a misdemeanor of the second degree, ... unless the value of the personal property or equipment is of a value of $300 or more; in that event the violation constitutes a felony of the third degree.... § 812.155(8) (emphasis added). Section 812.155(4)(b) creates a permissive inference that failure to redeliver the property is evidence of abandonment or refusal to redeliver such property. See State v. Rygwelski, 899 So.2d 498, 503-04 (Fla. 2d DCA 2005) (holding that section 812.155(4)(b) creates a permissive inference, not a mandatory presumption). Section 812.155(4)(b) specifically provides that the “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 evidence of abandonme...

...forms the renter that the failure to redeliver the property will create this permissive inference. In the present case, the trial court denied Ellsworth’s motion to dismiss based on its finding that the rental agreement substantially complied with section 812.155(6)....

...P.E., 14 So.3d 228, 234 (Fla.2009). When the statutory language is clear, courts may not explore legislative history nor apply canons of statutory construction. Daniels v. Fla. Dep’t of Health, 898 So.2d 61, 64 (Fla.2005). We conclude that the language and plain meaning of section 812.155(6) is clear....

...2 Such required language informs the consumer that a permissive inference will arise from her failure to return the property, i.e., that such failure is “evidence of abandonment or refusal to redeliver the property,” which is an element of the offense. See § 812.155(3)....

...nience.” Id. In the present case, the language refers to an action preceding the possible deprivation of a substantive right: “As a prerequisite to prosecution under this section, the following statement must be contained in the agreement....” § 812.155(6)....

...ysis for HB 1317 (May 13, 1998) states that ”[i]n order for a prosecutor to use the presumptions permitted by the bill the person renting or leasing the property must initial the following statement in the contract. ...” . If the requirements of section 812.155 have not been met, a person who fails to return rental property may still be charged with theft under section 812.014, Florida Statutes (2009), but the State would not be entitled to use the presumptions provided in section 812.155.

...Appellant was charged with, entered a plea to, and was sentenced for failure to redeliver a hired vehicle in violation of section 817.52(3), Florida Statutes (2009). The judgment, however, reflects a conviction for failure to redeliver a hired or leased property of $300 or more in violation of section 812.155(3), Florida Statutes (2009)....

...Sanders, Assistant Public Defender, Bartow, for Respondent. *500 WALLACE, Judge. The State seeks certiorari review of the trial court's order denying John Henry Rygwelski's motion to dismiss the charge of failure to return leased equipment in violation of section 812.155, Florida Statutes (2001), but holding section 812.155(4)(b) unconstitutional. The trial court found 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....

...g the State irreparable harm that cannot be remedied on direct appeal. Accordingly, we grant the petition for certiorari, quash the order under review, and remand for further proceedings. Procedural History The State charged Rygwelski with violating section 812.155(3)....

...sing property valued at $300 or more under an agreement to redeliver, abandons or willfully refuses to redeliver the property as agreed shall be guilty of a third-degree felony. In his motion to dismiss, Rygwelski 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....

...Rygwelski 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 on Rygwelski's motion, the 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 trial 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....

...ient 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....

...1983) (burglary); State v. Ferrari, 398 So.2d 804 (Fla.1981) (misappropriation of construction funds). Id. Thus the weight of Florida Supreme Court authority holds that such mandatory statutory language creates a permissive inference. *503 The Present Case 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." Und...

...on direct appeal; thus the prejudice resulting from the trial court's erroneous order would be irreparable. See State v. Pettis, 520 So.2d 250, 253 (Fla.1988). Therefore, certiorari is an appropriate remedy at this point in the proceedings. Because section 812.155(4)(b) creates a permissive inference, Rygwelski 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...

...s-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. Conclusion The trial court departed from the essential requirements of the law by identifying *504 section 812.155(4)(b) as a mandatory presumption when, in fact, it is a permissive inference pursuant to controlling Florida precedent....

...The trial court held a bench trial on Ronnie Smith's criminal charge without obtaining an effective waiver of Smith's right to a jury trial. Therefore, we must reverse Smith's conviction and remand for a new trial. Smith was charged with violating section 812.155(3), Florida Statutes (2005), for failing to return a cement mixer he leased from Taylor Rental in September 2005....

...Accordingly, we must reverse and remand for a new trial. We decline Smith's invitation to reverse the denial of his motion for judgment of acquittal. But for purposes of retrial, we note that Smith is charged with a violation of the 2005 version of section 812.155(3), which states in pertinent part: FAILURE TO REDELIVER HIRED OR LEASED PERSONAL PROPERTY.—Whoever, after hiring or leasing any personal property or equipment under an agreement to redeliver the same to the person letting such perso...

...in s. 775.082 or s. 775.083, unless the value of the personal property or equipment is of a value of $300 or more; in that event the violation constitutes a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. § 812.155(3) (emphasis supplied)....

...Thus, contrary to the trial court's conclusion below, the State was required to prove Smith's intent to defraud in order to convict him of the crime charged. The 2005 statute also provided the State with a permissive inference of fraudulent intent for a violation of section 812.155(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 *705 demand for return is prima facie evidence of fraudulent intent." § 812.155(4)(b); see also State v....

NORTHCUTT, Judge. In three separate Polk County cases, Dawn Gilbert, John Paul Story, and Decar-lo Johnson were charged with failure to redeliver leased property, a third-degree felony in violation of section 812.155, Florida Statutes (2002). The circuit court dismissed each case based on the defense argument that the statute is a prohibited special law and therefore unconstitutional. The State timely appeals and argues that section 812.155 is not a prohibited special law and is, therefore, constitutional....

...3d 1251, 1258-59 (Fla. 2014). In 2012, the State charged Mr. Rodriguez-Aguilar with one count of failure to redeliver leased personal property—a television and a laptop—to Aaron Rents, which offense is a third-degree felony. See § 812.155(3), Fla....

...Sanders, Assistant Public Defender, Bartow, for Appellees. WHATLEY, Judge. The State appeals the orders dismissing the informations filed against Tiffany Sue Rose, Clifford Lavond Green, and Thomas Antwan Mayfield (the Appellees) charging them with violating section 812.155(3), Florida Statutes (2001), for failing to return leased property valued at $300 or more to the lessor with the intent to defraud....

...state function or instrumentality. State ex rel. Landis v. Harris, 120 Fla. 555, 163 So. 237, 240 (1934), quoted in Schrader, 840 So.2d at 1055 (citations omitted). In moving to dismiss the informations filed against them, the Appellees argued that section 812.155(3) is a special law pertaining to three of the twenty-one subjects about which section 11(a) of the Florida Constitution prohibits special laws: rules of evidence in any court, punishment for a crime, and conditions precedent to bringing any civil or criminal proceeding. Art. III, § 11(a)(3), (4), (7). At the hearing on the motions to dismiss, the Appellees pointed out that section 812.155(7) requires as a prerequisite to prosecution that a notice must be printed on all rental agreements advising lessees that the failure to return property and pay all amounts due upon expiration of the rental period is prima facie evidence of intent to defraud punishable as either a misdemeanor or a felony....

...42 that failure to return property within five days of receiving a demand therefor is prima facie evidence of fraudulent intent. The Appellees concluded that the statute was a prohibited special law. None of the points raised by the Appellees reveal section 812.155 to be a prohibited special law — it does not operate only upon particular persons or things nor does it operate only in a specially indicated part of the state. See Harris, 120 Fla. 555, 163 So. 237. Rather, section 812.155(3) operates on all those persons who fail to return leased property under the circumstances specified in the statute. See Dep't of Legal Affairs v. Sanford-Orlando Kennel Club, Inc., 434 So.2d 879, 881 (Fla.1983) ("A general law operates uniformly... because every person brought under the law is affected by it in a uniform fashion."). Accordingly, we hold that section 812.155(3) is not a constitutionally prohibited special law, and we reverse the order dismissing the informations filed against the Appellees and remand for further proceedings consistent with this opinion. Reversed and remanded. CASANUEVA and SALCINES, JJ., Concur. NOTES [1] Section 812.155(3) makes it a second-degree misdemeanor to fail to return property valued at less than $300.

KELLY, Judge. The State seeks certiorari review of the trial court’s order which finds section 812.155(4)(b), Florida Statutes (2001), to be unconstitutional on the ground that it creates a mandatory presumption that relieves the State of its burden of proving an essential element of the offense of failing to return leased property. We hold that the trial court departed from the essential requirements of the law in finding that section 812.155(4)(b) is a mandatory presumption, rather than a permissive inference. See State v. Rygwelski, 899 So.2d 498 (Fla. 2d DCA April 22, 2005) (holding that section 812.155(4)(b) creates a permissive inference, not a mandatory presumption, and, therefore, the defendant must make an as-applied challenge to its application under the facts of his case)....

violation of section 812.155, Florida Statutes (2003). In Rygwelski, we held that section 812.155(4)(b) did

...ecution claims. See, e.g., Alvarez-Mena v. Miami-Dade County, 305 So. 3d 63, 67–68 (Fla. 3d DCA 2019). Because Renter dedicates considerable space in the initial brief to his argument that the police had no probable cause to arrest him, citing section 812.155, Florida Statutes (2017), we direct him to our holding in State v. Sampaio, 291 So. 3d 120, 125 (Fla. 4th DCA 2020). In both Sampaio and the instant case, the arrested party argued the 4 reporting/prosecuting party acted contrary to section 812.155. However, here, as in Sampaio, Renter was arrested only pursuant to section 817.52(3), Florida Statutes (2017), a separate and distinct statute from section 812.155....

PER CURIAM. The State appeals the trial court’s order granting Clifford Lavond Green’s motion to dismiss the charge of failure to return leased equipment in violation of section 812.155, Florida Statutes (2002). We reverse and remand for further proceedings in accordance with our recent decision in State v. Higby, 899 So.2d 1269 (Fla. 2d DCA 2005) (holding that trial court erred by identifying section 812.155(4)(b) as mandatory presumption when it is permissive inference)....

...Affirmed in part, reversed in part, and remanded. WHATLEY and KELLY, JJ., Concur. NOTES [1] We consolidated these cases on our own motion for the purpose of issuing this opinion. [2] Mrs. Hay also pleaded guilty to one count of failure to redeliver a leased vehicle, a violation of section 812.155(3), Florida Statutes (2009), and was sentenced to time served for this offense....

...the defendant, Robert Sampaio, with failure to redeliver a hired vehicle “contrary to” section 817.52(3), Florida Statutes (2016). The trial court dismissed the information on the ground that the defendant did not initial a paragraph with the specific language required by section 812.155(6), Florida Statutes (2016). Because the State charged the defendant under section 817.52(3), and not under section 812.155, we reverse. The defendant was charged under section 817.52(3) for failure to redeliver a hired vehicle. The defendant moved to dismiss the information, arguing that the State had “failed to meet the strict statutory requirements” under section 812.155(6), Florida Statutes, which states that “[a]s a prerequisite to prosecution,” a rental agreement must include a warning statement initialed by the renter. Specifically, the defendant argued that the rental agreement “call[ed] for punishment in accordance [with] section 812.155,” but failed to meet the strict notice requirement mandated by section 812.155(6) because the agreement “does not encompass the statutory language nor was it initialed by the renter.” The State filed a response to the defendant’s motion to dismiss, pointing out that the defendant was charged under section 817.52(3)—not under section 812.155....

...Notably, section 817.52(3) does not contain any provision requiring written and initialed notice as a prerequisite to prosecution. Here, the trial court agreed with the defendant’s arguments and applied the requirements of a separate statute to his case. That statute, section 812.155(3), defines the criminal offense of failure to return hired or leased personal property. Although this offense is similar to the offense established under section 817.52(3), section 812.155(3) differs from section 817.52(3) in the following respects: first, section 812.155(3) uses the phrase “personal property or equipment,” instead of “motor vehicle”; and second, section 812.155(3) makes no reference to any “intent to defraud”: (3) FAILURE TO RETURN HIRED OR LEASED PERSONAL PROPERTY.—Whoever, after hiring or leasing personal property or equipment under an agreement to return the...

...775.082 or s. 775.083, unless the value of the personal property or equipment is of a value of $300 or more; in that case the person commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. § 812.155(3), Fla. Stat. (2016). Additionally, section 812.155(4)(b) states that “failure to redeliver the property or equipment” within five days of a proper demand for return “is prima facie evidence of abandonment or refusal to redeliver the property or equipment.” In other words, section 812.155(4)(b) “creates a permissive inference that failure to redeliver the property is evidence of abandonment or refusal to redeliver such property.” Ellsworth v. State, 89 So. 3d 1076, 1078 (Fla. 2d DCA 2012). 3  To ensure that a renter is made aware of the consequences created by the permissive inference contained within this particular statutory provision, section 812.155(6) establishes a notice requirement “[a]s a prerequisite to prosecution” under section 812.155: (6) NOTICE REQUIRED.—As a prerequisite to prosecution under this section, the following statement must be contained in the agreement under which the owner or person lawfully possessing the property or equip...

...expiration of the rental period and failure to pay all amounts due (including costs for damage to the property or equipment) are evidence of abandonment or refusal to redeliver the property, punishable in accordance with section 812.155, Florida Statutes. § 812.155(6), Fla. Stat. (2016) (emphasis added). Here, the trial court erred by applying the notice requirement of section 812.155 to a prosecution under section 817.52—a separate and distinct statute. The plain language of section 817.52 does not include any notice requirement, nor does it reference section 812.155. Moreover, the plain language of section 812.155(6) makes clear that the notice requirement is a prerequisite to prosecution “under this section,” meaning section 812.155. Prosecution of the defendant under section 817.52(3) did not require compliance with the notice requirement found in section 812.155(6). Although it appears that the defendant could have been charged under either statute, because the statutes proscribe similar conduct, the defendant was charged solely under section 817.52 and not section 812.155. Section 812.155 is a general statute that applies to rental property or equipment, whereas section 817.52 is a specific statute applicable solely to the leasing of vehicles. The purpose of the notice requirement contained in section 812.155 is to notify renters of the permissive inference that a failure to return rental property or equipment upon the expiration of the rental period is evidence of abandonment or refusal to redeliver the property. By contrast, section 817.52 does not create any such permissive inference. And, unlike section 812.155, section 817.52 requires proof of “intent to defraud, abandon or willfully refuse to redeliver” the property rather than allowing for a permissive inference to be made. 4  Because the wordin...

...4th DCA 1993). To do so would be to modify the express terms of the statute, which would be an improper abrogation of legislative power. See Oruga Corp. v. AT&T Wireless of Fla., Inc., 712 So. 2d 1141, 1144 (Fla. 3d DCA 1998) (citing Holly v. Auld, 450 So. 2d 217, 219 (Fla. 1984)). The defendant rightly concedes that section 812.155(6)’s notice requirement does not specifically apply to him, but nonetheless argues that this court should affirm based upon the rule of lenity....

...2008). The rule of lenity is inapplicable when a statute is unambiguous. See Hopkins v. State, 105 So. 3d 470, 475 (Fla. 2012). Here, because section 817.52 is unambiguous, the rule of lenity does not apply. Because the unambiguous language of section 817.52(3) does not incorporate section 812.155(6)’s notice requirement, the analysis ends here. This court cannot look behind the plain language of the statute or resort to the rules of statutory construction to ascertain legislative intent. Inserting section 812.155(6)’s notice provision into section 817.52(3) by judicial interpretation, or by ignoring the words “under this section,” creates a substantive prerequisite to establishing a defendant’s criminal liability not expressly intended by the Legislature....

...do so”). 5  Accordingly, because section 817.52 does not include a notice requirement, the trial court erred in granting the defendant’s motion to dismiss on the basis that the rental agreement did not satisfy section 812.155(6)’s notice requirement....

WHATLEY, Judge. Ryan Dean Monroe was charged by information 'with failing to return leased property in violation of section 812.155, Florida Statutes (2001); The circuit court dismissed the information after finding that the statute was unconstitutional because- it created a special law....

CAMPBELL, Acting Chief Judge. T.R.P., appellant, challenges the trial court order adjudicating him delinquent for a misdemeanor failure to redeliver leased personal property (a tuxedo) in violation of section 812.155(3), Florida Statutes (1995)....

...Attempt 777.04(1) 5.1 Comment This instruction was adopted in 2014. - 40 -  14.10 FAILURE TO RETURN [HIRED] [LEASED] PROPERTY § 812.155(3), Fla....

...If you cannot determine the minimum value, you must find the value was less than $300. - 41 -  Lesser Included Offenses FAILURE TO RETURN HIRED OR LEASED PROPERTY — 812.155(3) CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. None Attempt 777.04(1) 5.1 Comment See § 812.155(6), Fla....

...obtaining property in return for a worthless check, in violation of section 832.05(4)(c), Florida Statutes (2010). In each of two other cases, he pleaded to one count of failure to return leased property with a value of $300 or more, in violation of section 812.155(3), Florida Statutes (2010)....

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....

...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 *1271 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....

...ient 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...

...s-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 *1272 precedent....