Marcolini v. State

• Decision Date: 18 January 1996
• Docket Number: 85226,Nos. 85225,s. 85225
• Citation: 673 So.2d 3
• Parties: 21 Fla. L. Weekly S190, 21 Fla. L. Weekly S25 Richard MARCOLINI, Petitioner, v. STATE of Florida, Respondent. Mercedes ACOSTA, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida Supreme Court

Page 3

673 So.2d 3

21 Fla. L. Weekly S190, 21 Fla. L. Weekly S25

Richard MARCOLINI, Petitioner, v. STATE of Florida, Respondent.

Mercedes ACOSTA, Petitioner, v. STATE of Florida, Respondent.

Nos. 85225, 85226.

Supreme Court of Florida.

Jan. 18, 1996.

Clarification Denied April 25, 1996.

Richard L. Jorandby, Public Defender and Anthony Cavello, Assistant Public Defender, West Palm Beach, for Petitioners.

Robert A. Butterworth, Attorney General; Joan Fowler, Bureau Chief, Senior Assistant Attorney General and Myra J. Fried and Michelle A. Konig, Assistant Attorneys General, West Palm Beach, for Respondent.

Robert E. Stone, Miami, amicus curiae for Florida Power & Light Company.

WELLS, Justice.

We have for review State v. Marcolini, 664 So.2d 963 (Fla. 4th DCA 1995), and State v. Acosta, 664 So.2d 967 (Fla. 4th DCA 1995), based on apparent conflict with MacMillan v. State, 358 So.2d 547 (Fla.1978). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.

Marcolini was charged with theft of electricity in violation of section 812.14, Florida Statutes (1991), as a result of the discovery of a wire having been inserted in a hole drilled in his electric meter. According to section 812.14(3), Marcolini's actions may constitute prima facie evidence of a violation of that statute. Section 812.14(3) provides:

(3) The presence on property in the actual possession of a person of any device or alteration which effects the diversion or use of the services of a utility, cable television service, or community antenna line service so as to avoid the registration of such use by or on a meter installed by the utility or so as to otherwise avoid the reporting of use of such service for payment shall be prima facie evidence of the violation of this section by such person; however, this presumption shall not apply unless:

(a) The presence of such a device or alteration can be attributed only to a deliberate act in furtherance of an intent to avoid payment for utility services;

(b) The person charged has received the direct benefit of the reduction of the cost of such utility services; and

(c) The customer or recipient of the utility services has received the direct benefit of such utility service for at least one full billing cycle.

Marcolini filed a pretrial motion to declare unconstitutional the presumption created by section 812.14(3). After a hearing on the motion, the court found that the statute shifted the burden of proof to the defendant once the State proved the presence of a device which effected the diversion or use of utility services and thus created an unconstitutional mandatory rebuttable presumption. A mandatory rebuttable presumption requires the trier of fact to presume an element of a crime upon proof of a basic or evidentiary fact unless the defendant comes forward with evidence to rebut the finding of that element. Francis v. Franklin, 471 U.S. 307, 314 n. 2, 105 S.Ct. 1965, 1971 n. 2, 85 L.Ed.2d 344 (1985); Sandstrom v. Montana, 442 U.S. 510, 517, 99 S.Ct. 2450, 2456, 61 L.Ed.2d 39 (1979); County Court of Ulster County, N.Y. v. Allen, 442 U.S. 140, 157, 99 S.Ct. 2213, 2225, 60 L.Ed.2d 777 (1979). Such a presumption violates a defendant's due process rights by relieving the State of the burden of persuasion. Francis, 471 U.S. at 317, 105 S.Ct. at 1972-73. The trial court dismissed the case and, pursuant to Florida Rule of Appellate Procedure 9.030(b)(4)(B), certified the issue to the Fourth District Court of Appeal as one of great public importance.

The Fourth District reversed the trial court's dismissal. ¹ The court questioned whether under the facial analysis used by this Court in MacMillan, ² the 1979 amendments to section 812.14(3) made the current version of this provision constitutional. Marcolini, 664 So.2d at 964. The court concluded however, pursuant to recent case law from this Court and the United States Supreme Court, ³ that the trial court erred in determining the constitutionality of the statute facially rather than as applied because the statute created a permissive inference ⁴ as opposed to a mandatory rebuttable presumption. Id. A permissive inference allows, but does not require, the trier of fact to infer an elemental fact upon proof of a basic fact and places no burden on the defendant. Allen, 442 U.S. at 157, 99 S.Ct. at 2224. The district court classified the presumption created by section 812.14(3) as permissive based on the fact that it contained the words "shall be prima facie evidence," as did the statute labeled a permissive inference in State v. Rolle, 560 So.2d 1154, cert. denied, 498 U.S. 867, 111 S.Ct. 181, 112 L.Ed.2d 144 (1990). Marcolini, 664 So.2d at 966. We agree with the district court that the statute creates a permissive inference and that the constitutionality of the statute must therefore be determined as applied rather than facially.

For a permissive inference to withstand constitutional challenge in an as-applied analysis, a rational connection must exist between the facts in the record and the ultimate fact to be presumed. Allen, 442 U.S. at 165, 99 S.Ct. at 2228. Although this case did not proceed to trial, the district court applied the rational connection test to the permissive inference in light of the facts in the record at the time of the motion and concluded:

In Allen, ... the New York statute provided that the presence of a firearm in an automobile was "presumptive evidence of its possession by all persons occupying such automobile." The Supreme Court, after considering all of the facts, held the provision constitutional as applied to three occupants of an automobile, where two handguns were in an open handbag of a fourth occupant and were visible to the officer who had stopped the vehicle for speeding. If the New York statute in Allen passes the rational connection test, then the Florida statute, as applied to the facts in this case so far as we know them, also passes the rational connection test. In our opinion the odds are just as good that the defendant in the present case is the culprit as the odds were that all of the occupants of the vehicle in Allen were in possession of the handguns in the open handbag of one of the occupants.

In addition to Allen, State v. Ferrari, 398 So.2d 804 (Fla.1981), also supports our conclusion that the present inference passes the rational connection test. In Ferrari, the supreme court held that a statutory provision which made it "prima facie evidence" of criminal fraud for a contractor to use a payment made by the owner for any purpose other than paying for the labor or services performed on the owner's property passed the rational connection test.

Marcolini, 664 So.2d at 966. The court acknowledged that a final determination of the statute's constitutionality should be made in light of the facts as presented at trial. Id. at 967.

We agree with the district court that the current version of the statute as applied to the limited facts presented in this case passes the rational connection test. In order for the permissive inference in section 812.14(3) to pass the rational connection test, the record must disclose that the presumed fact, that Marcolini and Acosta violated section 812.14, "more likely than not" flows from the following facts which the state must prove: (1) a device or alteration of equipment allowing for use of a utility service without payment was present on property in the actual possession of the defendant; (2) the presence of the device or alteration was the result of a deliberate act in furtherance of an intent to avoid payment for utility services; (3) the defendant received the direct benefit of the reduction in cost of the utility services effected by the device or alteration; and (4) the customer received the direct benefit of such utility service for at least one full billing cycle. We find that a defendant is more likely than not in violation of the statute when a fact finder concludes that each of these facts has been proven by the State.

We conclude that the amendments made to section 812.14(3) following MacMillan bolster the statute's constitutionality in this as-applied analysis. Prior to the amendments, the fact of intent to violate and thus violation was presumed upon a showing of proof that the property on which the diversion occurred was in the actual possession of the accused or upon proof that the accused received the direct benefit from a utility. MacMillan, 358 So.2d at 549. The current version of the statute requires that the element of intent to violate be proven rather than presumed. This requirement and the additional facts the State must now prove eliminate the possibility, which existed under the old statute, that a person will be charged with violation of the statute as a result of action taken by a prankster, angry neighbor, or vandal.

We emphasize that our analysis of the statute is limited to the bare-bone facts upon which the district court based its analysis. A complete analysis must still be made in light of the facts presented at trial and the jury instruction on the statutory presumption. Jury instructions play an integral role in the final determination of whether that presumption is mandatory or permissive. ⁵ Thus, if the trial judge on remand determines that the statute passes the rational connection test the judge must instruct the jury as to the application of the statute in accord with the requirements set forth in Rolle, 560 So.2d at 1156, and Wilhelm v. State, 568 So.2d 1, 3 (Fla.1990) (quoting Boyde v. California, 494 U.S. 370, 110 S.Ct. 1190, 1198, 108 L.Ed.2d 316 (1990)). As these cases indicate, the jury instructions must not shift to the defendant the burden of persuasion on an element of the offense charged.

Finally, we address what the district court considered to be conflict between this case and MacMillan. The district court stated that its decision conflicted with MacMillan but determined that this Court had reconciled the...