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.
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.
Florida Statute 812.155 outlines three separate crimes in subsections 1, 2 and 3:
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:
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.
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 firstname.lastname@example.org
Thanks again for reading!