Definition of Failure to Return
As defined under Section 812.155(3), Florida Statutes, a Failure to Return Leased or Rented Property occurs where a defendant knowingly refuses to return personal property at the expiration of a lease or rental period, and does so without the consent of the property owner and in contravention of the rental or lease agreement.
Proof at Trial
To obtain a conviction, the prosecution must prove the following four factual elements beyond a reasonable doubt:
- The defendant hired, rented, or leased personal property or equipment;
- The hiring, renting or leasing was pursuant to an agreement to return the personal property or equipment to the a person letting the property (or his or her agent or employee) at the termination of the period for which it was let;
- The defendant knowingly abandoned or refused to return the property at the termination of the period for which the property was let; and
- The defendant’s abandonment or refusal to return the property was without the consent of the property owner (or his or her agent/employee).
Penalties for Failure to Return
In Florida, a failure to return or redeliver hired, leased, or rented personal property may be charged as a felony or misdemeanor, depending on the value of the property in question.
- Property Value Less Than $300– If the value of the property retained is under $300.00, the offense is classified as a second degree misdemeanor, punishable by up to sixty (60) days in jail or six months probation, and a $500.00 fine.
- Property Value $300 or Greater– If the value of the property is greater than $300.00, the offense is classified as a third degree felony, with penalties of up to five years in prison or five years probation, and $5,000.00 fine.
Demand for Return
Under Section 812.155(4)(b), Florida Statutes, a defendant’s failure to return the subject property within five days of the property owner making a written demand (through certified mail or courier delivery with tracking service) for return of the of the property, is prima facie evidence that the defendant either abandoned the property or knowingly refused to make a a return.
This language creates a permissive inference of a knowing refusal, which may be rebutted by contrary evidence. State v. Rygwelski, 899 So. 2d 498, 503 (Fla. 2d DCA 2005); State v. Higby, 899 So. 2d 1269, 1271 (Fla. 2d DCA 2005).
A permissive inference will be valid so long as, under the facts of the case, the presumed fact (knowing refusal) more likely than not flows from the basic fact (i.e. that property was not returned) and the inference is not the sole basis for a finding of guilt.
On the other hand, if, under the facts of the case, it is clear that the inference is the sole basis for a finding of guilt, the fact proved must be sufficient to support the inference of guilt beyond a reasonable doubt. Rygwelski, 899 So. 2d at 498.
For a defendant to incur criminal liability for Failure to Return Leased, Rented, or Hired Property, the property owner must have included the following Notice in the rental or lease agreement:
“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.”
This notice is a condition precedent to any prosecution under the leased property statute. Thus, if the property owner fails to provide the proper Notice in the rental or lease agreement, then the prosecution cannot be brought. See Section 812.155(6), Florida Statutes.
Defenses to Leased Property Charge
There are numerous defenses available to contest a charge of Failure to Return or Redeliver Hired, Leased, or Rented Property. Common examples include the following:
- Ambiguity or contrary terms in the rental, lease, or hiring agreement;
- Consent (express or implied) of the property owner;
- The subject property was stolen or lost;
- Property owner failed to provide proper notice of his/her demand for return;
- The failure to return the subject property was not the result of a refusal, but the result of circumstances beyond the defendant’s control;
- The property that is the subject of the prosecution was obtained from the defendant by a third party without the defendant’s consent;
- Inadvertent failure to return.
Contact an Attorney
If you have been accused of Failure to Return Leased or Rented Property, contact Hussein & Webber, PL for a free consultation. Our attorneys handle cases in Jacksonville, Orlando, and the surrounding counties of northeast and central Florida.