State v. Marcolini
| Decision Date | 01 February 1995 |
| Docket Number | No. 93-3825,93-3825 |
| Parties | 20 Fla. L. Weekly D300 STATE of Florida, Appellant, v. Richard MARCOLINI, Appellee. |
| Court | Florida District Court of Appeals |
Robert A. Butterworth, Atty. Gen., Tallahassee, Melvina Racey Flaherty and Myra J. Fried, Asst. Attys. Gen., West Palm Beach, for appellant.
Richard L. Jorandby, Public Defender, and Anthony Calvello, Asst. Public Defender, West Palm Beach, for appellee.
Robert E. Stone, Miami, for amicus curiae--Florida Power & Light Co.
The appellee was charged with theft of electricity as a result of the discovery of a wire having been inserted in a hole which had been drilled in his electric meter. The statute under which he is charged provides that these facts constitute prima facie evidence of a violation of the statute, and the county court held this provision unconstitutional under the principle that the provision so restricts a fact-finder's freedom to determine whether the evidence reflects guilt beyond a reasonable doubt as to amount to a denial of due process. In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). We have jurisdiction because, along with dismissing the case, the county court certified the issue as a question of great public importance pursuant to Florida Rule of Appellate Procedure 9.030(b)(4)(B). We reverse.
The statute in question, section 812.14(3), Florida Statute (1991), entitled "Trespass and larceny with relation to utility or cable television fixtures," provides in subsection (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 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 service; 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. (Emphasis added).
The legislature passed this provision in 1979, after its predecessor was held unconstitutional on its face in MacMillan v. State, 358 So.2d 547 (Fla.1978). The trial court concluded that despite the changes in the statute, this provision is still unconstitutional on its face under MacMillan.
The portion of the statute held unconstitutional in MacMillan provided:
(Emphasis added).
Section 812.14(3), Fla.Stat. (Supp.1976).
While we are not persuaded that the changes made by the legislature would make the provision constitutional under the analysis used by the MacMillan court, post-MacMillan decisions by the United States Supreme Court and the Florida Supreme Court hold that the constitutionality of a statutory provision such as this is not to be determined facially, but rather in light of the facts and jury instructions. The trial court's determination that this provision is unconstitutional on its face is therefore erroneous.
In MacMillan our supreme court quoted from Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519 (1943), in which the Supreme Court stated:
[T]he due process clauses of the Fifth and Fourteenth Amendments set limits upon the power of Congress or that of a state legislature to make the proof of one fact or group of facts evidence of the existence of the ultimate fact on which guilt is predicated....
Under our decisions, a statutory presumption cannot be sustained if there be no rational connection between the fact proved and the ultimate fact presumed, if the inference of the one from proof of the other is arbitrary because of lack of connection between the two in common experience. This is not to say that a valid presumption may not be created upon a view of relation broader than that a jury might take in a specific case. But where the inference is so strained as not to have a reasonable relation to the circumstances of life as we know them it is not competent for the legislature to create it as a rule governing the procedure of courts. (Emphasis added).
MacMillan, 358 So.2d at 548-49.
In addition to Tot, the MacMillan court relied on Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969), in which the Supreme Court discussed the Tot "rational connection" test and explained that in order for a statutory presumption to be constitutional there had to be "substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend." Relying further on Tot and Leary, the Florida Supreme Court in MacMillan held that the predecessor to section 812.14(3) was facially unconstitutional, stating:
We find that it cannot be said with substantial assurance that the presumed fact that the defendant is guilty of violation of Section 812.14, Florida Statutes (Supp.1976), is more likely than not to flow from the proved fact of possession of the premises or receipt of benefits. One in actual possession of property or one receiving direct benefits would not more likely than not be the guilty person. Such an inference is irrational and arbitrary. Common experience tells us that the device or apparatus tampered with or altered is generally on the outside of a building and accessible to anyone; that the direct benefits from the use of electricity, gas, water, heat, oil, sewer service, telephone service, telegraph service, radio service, communication service, television service, or television community antenna line service are commonly derived by any occupant of the premises, including family members, business partners, associates, employees and others; and that the billing which would constitute notice of possible alteration is done no more frequently than monthly. Furthermore, there are many ways to make an alteration which are so simple in nature that a prankster, a vandal or any angry neighbor could utilize them to cause the one in possession of the premises to receive benefits therefrom without his knowledge and, thereby, subject him to the presumption.
After MacMillan was decided, the Supreme Court, in Ulster County Court v. Allen, 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979), clarified its earlier decisions on these statutory presumptions which it had previously recognized were "not all together clear." See Barnes v. United States, 412 U.S. 837, 843, 93 S.Ct. 2357, 2361, 37 L.Ed.2d 380 (1973).
In Allen, the issue was the constitutionality of a New York statute providing that the presence of a firearm in an automobile is "presumptive evidence of its possession by all persons occupying such automobile" with certain exceptions. The New York Court of Appeals held the provision unconstitutional on its face, and the Supreme Court reversed, deciding that this was not a mandatory presumption, but rather a "permissive inference or presumption." Allen, 99 S.Ct. at 2224. The Court explained that whereas a mandatory presumption requires the trier-of-fact to find the elemental fact of the crime upon proof of the basic fact and is generally examined on its face to determine its validity, a permissive presumption or inference allows, but does not require, the trier-of-fact to find the elemental fact upon proof of the basic fact. A permissive presumption or inference is evaluated for constitutionality under the facts of the case, not on its face. Allen, 99 S.Ct. at 2224-25.
Applying this rationale, the Allen Court concluded that there was a rational connection between the basic facts and the ultimate facts presumed. Id. at 2228. It also emphasized that the trial court's instructions to the jury made it clear that the provision was only permissive, that it could be ignored, and that there was a mandatory presumption of...
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Marcolini v. State
...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.1......
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State v. Acosta, 94-0055
...that a statutory provision under which defendant was charged was facially unconstitutional. In a companion case, State v. Marcolini, 664 So.2d 963 (Fla. 4th DCA 1995) we determined that the same provision was facially constitutional. We therefore reverse this case for the reasons expressed ......