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State v. Rygwelski4/22/2005
l purpose. Id. at 525 n.1. Without acknowledging Kahler or Rolle, the Brake court held that this language created a mandatory presumption. The Brake court then proceeded to conduct a facial review of the provision and held it unconstitutional. Id. at 529. The Brake opinion does not contain an analysis of the meaning of "shall be prima facie evidence" such as the court employed in Kahler and Rolle.
Despite Brake, the weight of clearly established Florida Supreme Court authority controls. " his Court does not intentionally overrule itself sub silentio." Puryear v. State, 810 So. 2d 901, 905 (Fla. 2002). We find nothing in Brake to indicate that the court wished to abrogate Kahler or Rolle. Further, Kahler and Rolle contain specific analysis of the dispositive issue in this case, which is absent in Brake. The trial court applied the incorrect law.
By depriving the State of the use of the statutorily authorized permissive inference, the trial court violated clearly established principles of law resulting in a miscarriage of justice, which significantly impaired the State's ability to present its case at trial. Should Rygwelski be acquitted, the principles of double jeopardy would prevent the State from seeking review 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 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 consideration 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.
Conclusion
The trial court departed from the essential requirements of the law 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 quash the order under review and remand this case for further proceedings consistent with this opinion.
Petition granted; order quashed.
NORTHCUTT and KELLY, JJ., Concur.
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