State v. Person
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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT STATE OF FLORIDA, Petitioner, v. TANIKA PERSON, Respondent. ) ) ) ) ) ) ) ) ) ) Case No. 2D04-807 Opinion filed June 3, 2005. Petition for Writ of Certiorari to the Circuit Court for Polk County; Roger A. Alcott, Judge. Charles J. Crist, Jr., Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Petitioner. James Marion Moorman, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Respondent. 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, 30 Fla. L. Weekly D1053 (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). Accordingly, we grant the petition for certiorari, quash the order under review, and remand for further proceedings. Petition for certiorari granted. NORTHCUTT and WALLACE, JJ., Concur. -2-
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