RENT TO GROAN?? An Overview of F.S. 812.155

Statute Overview: 812.155, Failure to Return Hired or Leased Personal Property

The Law Office of Matthew Glassman welcomes you back to my law blog and I’m doing something a little different this week. Instead of reviewing a recent case and how it might be relevant to you and your case, I thought I would do a deeper dive into one particular area of law that tends to rear its ugly head every now again: Florida Statute 812.155(3), failing to return hired or leased personal property or equipment.  As always, this information is provided for educational purposes and is intended to only be a general overview of the statute and not a substitute for legal advice. If you would like an individualized assessment of your case, and all the exceptions and defenses that might apply, I can be reached by phone at any time of day, 7 days a week for a free consultation at 954-908-3399.

The Typical Fact Pattern

As a criminal defense attorney, I have seen several cases where individuals have been charged with a felony for failing to return rental property. Many people are under the false assumption that a failure to meet the terms of a contract will always result in a civil dispute as opposed to a criminal dispute. A classic example of such a civil issue is when one fails to pay their own credit card bill after a wild weekend in Las Vegas.  Sure you may incur damage to your credit and huge penalties and fees as well as potential litigation but you aren’t getting arrested. (Assuming the credit card was yours and you had permission to go wild in Vegas with it).

The law treats rental property differently. The usual fact pattern involves an individual who has rented a car or perhaps rented some furniture or electronics from a rent-to-own store.  The individual then stops payment or does not return the item at the end of the rental period. Often times, someone is evicted and the rental property is thrown out, lost or left behind. Typically, the rental company involved makes some attempts to contact the individual and/or repossess the property. When those attempts fail the rental company ultimately turns to the police for assistance. The police have the authority to make an arrest and the prosecuting agency can ultimately file a charge of a third degree felony, punishable by up to 5 years in prison.  Most people assume, incorrectly, that failure to return the property would simply be a civil matter, and not result in criminal charges.

The Statute

Florida Statute 812.155 outlines three separate crimes in subsections 1, 2 and 3:

  1. Obtaining by trick, false representation, etc.
  2. Hiring or leasing with the intent to defraud.
  3. Failure to return hired or leased personal property.

This article only addresses subsection 3.  If you have been charged with an offense under the other subsections, reach out to me immediately and I can discuss the defenses and legal options that might be available to you.   Subsection 3 states: 

Whoever, after hiring or leasing personal property or equipment under an agreement to return the personal property to the person letting the personal property or equipment or his or her agent at the termination of the period for which it was let, shall, without the consent of the person or persons knowingly abandon or refuse to return the personal property or equipment as agreed, commits 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 case the person commits a felony of the third degree.

So, to prove the crime, the State must prove the following four elements (.rtf file) beyond a reasonable doubt: 

  1. The defendant leased property from the listed victim. 
  2. As part of lease agreement, the defendant agreed to return the property at the end of the rental lease period
  3. The defendant knowingly abandoned or refused to return the property as agreed, and
  4. The defendant did so without consent.

To prove the felony charge, the State must additionally show that the property was valued at over $300 and that value is determined based on the market value at the time of the offense.  

Bad News: The statute also allows for certain “permissive inferences” to be made at trial if the requirements are met.  For example, the court may infer that the defendant is refusing to return the property if the property is not returned to the owner within 5 days of the defendant receiving a demand for the return of the property by certified mail.  Troublingly, the court may also infer that the defendant is refusing to return the property if the defendant refuses to pay any additional costs that are incurred due to the defendant’s delay in returning the property.

Good News: The statute does provide some protection for the consumer leasing the property. In order to be prosecuted, the leasing contract must include the following term and the term must be initialed by the defendant: 

Failure to return rental 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.

Important Caselaw

There have not been many cases that have addressed F.S. 812.155. One very important case, however, was Ellsworth v. State, 89 So.3d 1076 (pdf), a Second District case from 2012.  In Ellsworth, the contract signed by the defendant had the following language: 

"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."

The defendant moved to dismiss the charge, because the contract language did not include the exact terms that are in the statute.  The trial court believed that the contract was substantially similar and denied the motion to dismiss.  The Appellate Court, however, held that the statute requires the lease contract to use the exact term that is in the statute, as the statute refers to the term as a “prerequisite to prosecution.” Because the terms were different, the Appellate Court overruled the trial court and dismissed the case against the defendant.

As you can see, if you or someone you know has been charged with a violation of 812.155, it is vitally important that you have an attorney who will dive into the facts of your case and zealously represent you.  If you would like a free consultation, please call at 954-908-3399 or send me an email at matt@matthewglassmanlaw.com

Thanks again for reading!

Violent Felony Offenders of Special Concern – Whittaker v. State

The Law Office of Matthew Glassman is back again with another installment of our weekly caselaw update.  This week brings us a Fourth District case (pdf): Whittaker v. State, 4D16-1036, which gives a great analysis of the proper procedure that trial courts should use when handling a violation of probation for someone who might be considered a Violent Felony Offender of Special Concern (usually abbreviated to VFO or VFOSC). As always, the information provided in this blog is for educational purposes only, and should not be considered legal advice.  If you or someone you know has violated their probation, be sure to reach out to me as soon as possible so that I can begin to protect all of your rights at this vital stage in the proceedings. 

Factual Summary

Mr. Whittaker was originally charged with aggravated battery with a deadly weapon (FS 784.045).  This charge is a second degree felony, punishable by up to 15 years in Florida State Prison.  The trial court judge sentenced Mr. Whittaker to 5 years of probation.  Unfortunately, Mr. Whittaker was accused of six probation violations, including one violation for committing a new offense of resisting an officer without violence (FS 843.02), a first degree misdemeanor punishable by up to a year in the county jail.  Mr. Whittaker entered an open plea to the violation, and the trial court found him to not be a danger, revoked his probation, and sentenced him to a guidelines sentence of 49.05 months Florida State Prison. (For more information on guidelines and scoresheets, check out my sentencing legal resources page.)

Legal Analysis

The Appellate Court’s main issue with Mr. Whittaker’s case was how the probation violation was handled by the trial court.  In most circumstances, when an individual violates probation, the court has many options in how to handle the violation. The court could dismiss the violation, reinstate probation, modify the probation (by perhaps including additional treatment measures or a stay in county jail), or revoke the probation. If the court revokes the probation, the court must sentence the defendant to at least the bottom of the guidelines and can sentence the defendant up to the maximum permissible sentence (in Mr. Whittaker’s case, 15 years Florida State Prison). 

If, however, the defendant is a Violent Felony Offender of Special Concern, the options available to the court are more limited, and more punitive.  A person is considered a VFOSC if the person is on probation for a qualifying offense as listed in the statute, FS 948.06(8)(c).  The most common qualifying offenses are: burglary of a dwelling, robbery, aggravated battery or aggravated assault, murder or attempted murder, and sexual battery. If the person qualifies, then before proceeding to sentencing, the court must first hold a “danger hearing” to determine whether the individual poses a danger to the community.   The court must put its reasoning for the finding in writing and must base that finding on the following factors: 

  1. The nature and circumstances of the violation and any new offenses charged.
  2. The offender’s present conduct, including criminal convictions.
  3. The offender’s amenability to nonincarcerative sanctions based on his or her history and conduct during the probation or community control supervision from which the violation hearing arises and any other previous supervisions, including disciplinary records of previous incarcerations.
  4. The weight of the evidence against the offender.
  5. Any other facts the court considers relevant.

If the court finds the offender to be a danger to the community, then the court must sentence the defendant to at least the guidelines sentence, and up to the maximum possible sentence. In this case, the sentencing judge did not make this detailed written finding about whether Mr. Whittaker was in fact a danger, so the case was returned to the lower court for a new sentencing hearing.

In additional to undergoing this danger hearing process, a person who is a VFOSC is penalized on the guidelines scoresheet by having each probation violation count for double the amount of points that a non-VFOSC would receive.  A probationer who is a VFOSC and commits a new felony offense on probation receives 24 additional points on their scoresheet, versus the normal 12 (or 12 instead of the normal 6 if the violation is only technical in nature).  As the court notes, these additional points on the scoresheet are added to anyone who qualifies as a VFOSC, regardless of whether the court finds the person to be a danger to the public.  Every additional point that a defendant receives on their scoresheet means that the lowest permissible sentence is increased. 

Essentially, the Violent Felony Offender of Special Concern provisions of the probation statute mean that a defendant is more likely to be sent to prison on a probation violation, and for a longer time, than a person who is not designated a VFOSC.  It is, therefore, incredibly important that you reach out to qualified counsel if you find yourself charged with violating your probation on a qualifying offense.  I am available 24-7 to offer a consultation either by phone at 954-908-3399 or email at matt@matthewglassmanlaw.com.

Thanks again for reading!
 

Caselaw Update: Reid v. State

Welcome back to the Glassman Law Blog and my biweekly explanation of a recent appellate decision.  Last week’s case about blood draws in DUI arrests generated some good comments and conversation and hopefully you all will find this week’s case just as enlightening and interesting.  As always, this blog is for informational purposes only and does not constitute legal advice.  If you or someone you know finds themselves charged with a criminal offense, reach out to the Law Office Of Matthew Glassman, so you’ll have someone fighting for you and your rights!  This week’s case arises from the Fourth District Court of Appeals – Reid v. State, 4D12-2303 – and discusses two issues that arise with some frequency in criminal cases: (1) improper closing argument by the prosecution and (2) the admissibility of prior in-court identifications of the defendant

Factual Summary

Mr. Reid and his co-defendant were tried jointly (see Florida Rule of Criminal Procedure 3.150) on charges of first degree murder and attempted first degree murder.  The State Attorney’s theory of the case was that Mr. Reid and his co-defendant went to the residence of the surviving victim in order to regain possession of a stolen vehicle belonging to a Mr. William Tibe.  The State argues that the murder and attempted murder occurred during a scuffle that ensued as a result of the defendants attempting to take the vehicle back.  The defense’s theory, however, was that Mr. Tibe was solely responsible for the shootings and that Mr. Reid was never even at the residence. The defense further argued that the eye witnesses claiming that Mr. Reid was at the scene of the crime had been improperly influenced by the police.  Ultimately, the jury found Mr. Reid guilty of the charged offenses.  Based on the following flaws in the trial, however, the 4th District Court of Appeals reversed that conviction and returned the case back to the lower court for a new trial.

Improper Closing Argument

The first issue raised on appeal by the defense was statements that the prosecution made during closing argument that constituted “burden shifting” and were thus improper.  In a criminal trial, a defendant is innocent until proven guilty beyond and to the exclusion of all reasonable doubt. A defendant has no obligation to put on any evidence in his or her defense; it is the state’s sole obligation to prove its case with whatever evidence it presents at trial.  The prosecution has a duty to turn over any and all relevant evidence to the defendant prior to trial (see Florida Rule of Criminal Procedure 3.220) . However, during trial the prosecutor has the discretion to choose which and how much evidence they want to put in front of a jury. The defendant does not have a burden to put forth any evidence. That burden lies squarely with the prosecution. Therefore,  A prosecutor “shifts the burden” by telling the jury that the defense could or should have done something to prove a defendant is innocent.  

In this case, the prosecutor stated in closing argument (among other things) that the defense "could have called William Tibe…. They absolutely could have called William Tibe.  They have the same availability to him as I do.  They could have called him, but they didn’t. And yet, they tell you, Defendant’s counsel tells you, he could have been the one."  As the Court noted, “A basic tenet of American criminal jurisprudence is that the State has the sole burden of proving a criminal defendant’s guilt…. To protect this tenet of due process, the general rule is that the state cannot comment on a defendant’s failure to produce evidence to refute an element of the crime, because doing so could erroneously lead the jury to believe that the defendant carried the burden of introducing evidence.”  Essentially, the prosecutor’s statement was improper because the jury should never wonder why a defendant did not call a particular witness, just as a jury should never wonder why a defendant did not testify in his or her own defense.  These are foundational principles of our system of justice.  The prosecutor’s statements crossed the line and were improper. 

Fortunately for Mr. Reid, his attorney made an objection to these statements at the time they were made and preserved Mr. Reid’s right to address the issue on appeal.  Because of defense counsel’s  timely objection, the Appellate Court reversed the case and sent it back to the lower court for a new trial.  Once again, this shows that a vigorous, engaged, and experienced defense attorney is necessary for you to protect all of your constitutional and statutory rights as a defendant in a criminal case.

Admissibility of In-Court Identifications

At four hearings prior to the trial, the surviving victim of the attempted murder identified Mr. Reid as one of the shooters. At trial, the State Attorney was permitted to ask the victim about these prior in-court identifications. These identifications bolstered the victim’s identifications by giving the jury the impressions that the victim had consistently identified Mr. Reid as the shooter.  The Florida Evidence Code is the statutory scheme created by the legislature that determines what evidence is admissible at trial.  Hearsay is defined as an out-of-court statement offered to prove the matter asserted.  Subject to many, many exceptions, hearsay is inadmissible in the state of Florida.  Fla. Stat. 90.801(2)(c) states that a statement of identification is admissible as it is “non-hearsay”.  The classic example of such a statement of identification is a statement by a witness pointing out a suspect right after a crime has been committed (e.g. “that’s the guy the hit me”).   

In this case, the State Attorney attempted to use statements of identification that were made in court, months after the alleged incident.  The Appellate Court ruled that these statements were not admissible as they were not made sufficiently close in time to the event in question.  The Court further ruled that this was not a harmless mistake by the trial court. The defense’s entire argument at trial was that Mr. Reid was misidentified as the shooter, in part based on the fact that shortly after the shooting the surviving victim could not identify Mr. Reid and the surviving victim had given a description of the shooter that did not match Mr. Reid’s physical description. In a close case such as this, allowing the surviving victim to improperly bolster his identification by saying he had made the identification on four other occasions may have been just enough to sway the jury to make a finding of guilty.  Again, the smallest details in a criminal case can have an incredibly large impact. Only by having a zealous advocate in your corner will you ensure that your rights are fully protected.

Thanks for reading! If you or someone you love find themselves arrested for an offense, be sure to reach out to me as soon as possible. I can be reached for a free consultation at 954-908-3399 or via email at matt@matthewglassmanlaw.com.

Matthew Glassman Has Been Nominated and Accepted as a 2017 AIOCLA’S 10 Best in Florida For Client Satisfaction

PRESS RELEASE

Matthew Glassman Has Been Nominated and Accepted as a 2017 AIOCLA’S 10 Best in Florida For Client Satisfaction

The American Institute of Criminal Law Attorneys has recognized the exceptional performance of Florida’s Criminal Law Attorney Matthew P. Glassman as a 2017 10 Best Criminal Law Attorneys for Client Satisfaction.

The American Institute of Criminal Law Attorneys is a third-party attorney rating organization that publishes an annual list of the Top 10 Criminal Law attorneys in each state. Attorneys who are selected to the "10 Best" list must pass AIOCLA's rigorous selection process, which is based on client and/or peer nominations, thorough research, and AIOCLA’s independent evaluation.  AIOCLA's annual list was created to be used as a resource for clients during the attorney selection process.

One of the most significant aspects of the selection process involves attorneys' relationships and reputation among his or her clients. As clients should be an attorney's top priority, AIOCLA places the utmost emphasis on selecting lawyers who have achieved significant success in the field of Criminal Law without sacrificing the service and support they provide. Selection criteria therefore focus on attorneys who demonstrate the highest standards of Client Satisfaction.

We congratulate Matthew Glassman on this achievement and we are honored to have him as a 2017 AIOCLA Member.

You can contact Matthew Glassman directly by calling The Law Office of Matthew Glassman P.A., at 954-908-3399 or by visiting his website at www.hatejail.com; matthewglassmanlaw.com.

DUI Caselaw Update: Montes-Valeton v. State

The Glassman Law Blog is officially back in business!  Things have been going great with the firm and I’ve been super busy fighting tooth and nail for my clients. With that being said, I am hoping to be able to do a write-up on a new and interesting case every other week or so from here on out.  As always, these case write-ups are for informational purposes only and should not be considered legal advice.  If you or someone you know find themselves charged with a crime, reach out to the Law Office Of Matthew Glassman, so you’ll have someone fighting for you and your rights!

This week I have decided to write about a recent Florida Supreme Court case – Montes-Valeton v. State, SC14-1672 - as it addresses several interesting issues, including the “fellow-officer rule” and implied consent for testing under Florida Statute 316.1933.  This case also highlights the importance of having a zealous advocate representing you in your defense – Mr. Montes was sentenced to 5 years of incarceration after the trial on his DUI manslaughter charge, however the Florida Supreme Court threw out the conviction and sentence because the trial court had erred in denying Mr. Montes’s motion to suppress.  Had that motion not been drafted and argued, Mr. Montes would still be sitting in prison.

Factual Summary

Mr. Montes was involved in a single vehicle car accident in which a passenger died.  Sergeant Tejera responded to the scene and made observations that led him to believe that Mr. Montes may have been under the influence of alcohol.  He notes that Mr. Montes was "worried, disoriented, confused, and that he emitted an odor of alcohol about his breath."  Soon thereafter, the crash investigation was turned over to Trooper Molina, who ultimately decided to arrest Mr. Montes.   Most importantly, Sergeant Tejera never mentioned his concern of Montes’s impairment to Trooper Molina.  Trooper Molina did not make the same observations. At the Motion to suppress, Trooper Molina testified that he did not notice an odor of alcohol on Mr. Montes and did not recall forming an opinion as to whether Mr. Montes was under the influence of alcohol.  Despite his lack of observation of impairment, Trooper Molina read Mr. Montes the implied consent warnings about refusing a blood draw.  In the State of Florida, if an officer after having probable cause to arrest a subject for DUI, requests that you submit to a drug or alcohol test and you refuse to submit to the test there will be consequences separate and apart from any criminal matter. If it is your first refusal, you will have your driver’s license administratively suspended for 12 months. If it’s your second time refusing, your license will automatically be administratively suspended for 18 months and you will be charged with a First Degree Misdemeanor.  After being read Implied Consent, Mr. Montes ultimately acquiesced to the blood draw. Prior to trial, Mr. Montes’s attorney argued at a Motion to Suppress, that no probable cause existed for the implied consent warnings to be read, and that Mr. Montes’s consent was involuntarily given under threat of a license suspension.  Montes’s attorney was seeking to have the blood draw thrown out. The motion to suppress was denied. The jury heard the blood draw results and rendered a verdict of guilty and Montes was sentenced to 5 years in prison.

Legal Analysis

The first issue that the Florida Supreme Court addressed was whether Trooper Molina had probable cause to believe that Mr. Montes was under the influence of alcohol.  Once a law enforcement officer has established probable cause that an individual is under the influence of alcohol, the officer will request the driver give a blood, breath or urine sample (depending on the circumstances).  The officer will also read the “implied consent” form that explains the consequences if a person fails to agree to the test.  Crucial to the probable cause determination in this case was whether Sergeant Tejera’s observations could be imputed to Trooper Molina based on the “fellow-officer rule”.  This rule essentially states that officers are allowed to rely on the observations of other officers in determining whether probable cause exists.  The Court stated, however, that the officer can only rely on those observations if they were in fact relayed to the arresting officer. In this case, Sergeant Tejera didn’t tell Trooper Molina about his concerns, so Sergeant Tejera’s observations could not be used in determining whether probable cause existed to request the blood draw.  Because Trooper Molina made no observations of his own, there was not probable cause that Mr. Montes was under the influence and thus was not required to give a blood sample pursuant to the implied consent law.

The second issue raised by Mr. Montes’s attorney flows from the first issue: if there was no probable cause to request the blood draw, was Mr. Montes’s consent to the blood draw therefore invalid?  In Florida, the voluntariness of consent is always determined based on the “totality of the circumstances” test.  Essentially, the court will weigh every factor in making a determination as to whether a person freely and voluntarily consented.  Some factors are: (1) the time and place of the encounter; (2) the number of officers present; (3) the officers' words and actions; (4) the age and maturity of the defendant; (5) the defendant's prior contacts with the police; (6) whether the defendant executed a written consent form; (7) whether the defendant was informed that he or she could refuse to give consent; and (8) the length of time the defendant was interrogated before consent was given.  The most important aspect in this particular case was the erroneous implied consent warning.  Mr. Montes was improperly told that his license would be suspended if he did not consent to a blood draw.  The Trooper told Mr. Montes inaccurate information – there could not be any consequences for his refusal because there wasn’t probable cause to require the blood draw. As the Florida Supreme Court succinctly stated “The fact that Trooper Molina improperly threatened Montes-Valeton with the suspension of his driver license for refusing to give consent to the blood draw renders his consent involuntary.”

I hope that you found this case to be interesting and educational. Again, if you or someone you love find themselves arrested for an offense, be sure to reach out to me as soon as possible. I can be reached for a free consultation at 954-908-3399 or via email at matt@matthewglassmanlaw.com.