
    STATE of Florida, Appellant, v. David FALCON, Appellee.
    No. 88-00173.
    District Court of Appeal of Florida, Second District.
    Jan. 26, 1990.
    Robert A. Butterworth, Atty. Gen., Tallahassee, and Robert J. Landry and Charles Corees, Jr., Asst. Attys. Gen., Tampa, for appellant.
    No Appearance for appellee.
   FRANK, Acting Chief Judge.

The state has appealed from an order in which the trial court dismissed a charge of embezzlement against Falcon on the ground that the statute he allegedly violated was unconstitutional. Falcon, a contractor, was charged with embezzlement pursuant to section 713.34(3), Florida Statutes (1985), which provided as follows:

(3) Any person, firm, corporation or agent, officer or employee thereof who, with intent to defraud, shall use the proceeds of any payment made to him on account of improving certain real property, for any other purpose than to pay for labor or services performed on or materials furnished for this specific improvement, while any amount for which he may be or become liable for such labor, services, or materials remains unpaid shall be guilty of embezzlement and shall be prosecuted and, upon conviction, punished in accordance with the provisions of the laws of this state; provided, however, that failure to pay for such labor, services or materials furnished for this specific improvement after receipt of such proceeds shall constitute prima facie evidence of intent to defraud (emphasis added).

The bothersome element of the statute is the proviso that a contractor’s failure to pay for labor, services, or materials after receipt of funds for those specific services or materials constitutes prima facie evidence of intent to defraud. Noting in State v. Ferrari, 398 So.2d 804, 807 (Fla.1981), that “[i]t is well settled that only permissive presumptions may be utilized in criminal cases,” the supreme court explicitly held the statute constitutional on the following basis:

The presumption in section 713.34(3) clearly affords a reasonable opportunity for rebuttal. Since the presumption is one of prima facie evidence only, the state is not totally relieved of the burden of proof. Any time after this prima facie evidence of intent is established the defendant may come forward with evidence to negate criminal intent, thereby destroying the presumption and shifting the burden back to the state to prove intent beyond a reasonable doubt. See, e.g., Mann v. State, 209 So.2d 472 (Fla. 1st DCA 1968).

The trial judge had before her Ferrari and Miller v. Norvell, 775 F.2d 1572 (11th Cir.1985), cert. denied, 476 U.S. 1126, 106 S.Ct. 1995, 90 L.Ed.2d 675 (1986). In Norvell the Eleventh Circuit held that jury instructions based upon a verbatim reading of section 713.34(3) were unconstitutional and further held the statute itself unconstitutional. Aware that its decision directly conflicted with our supreme court’s decision in Ferrari, the Eleventh Circuit explained, as a matter of federal constitutional law, that it was free to disregard the state precedent:

Normally, a state supreme court is the ultimate expositor of state law. However, when a court determines whether a statute creates a mandatory rebuttable presumption or a permissive inference, the court is directly deciding the question of whether that statute comports with federal constitutional requirements. The determination of the type of presumption a state statute creates is thus a federal question subject to review by federal courts. We note that to hold otherwise would create the anomalous situation where a statute is held to be constitutional, although jury instructions that are merely a verbatim rendition of the statute are held to be unconstitutional, (citations omitted).

775 F.2d at 1576.

To arrive at the conclusion in Norvell that section 713.34(3) creates an unconstitutional mandatory rebuttable presumption, the Eleventh Circuit relied upon Francis v. Franklin, 471 U.S. 307, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985), a post-Ferrari decision dealing with the constitutionality of jury instructions involving the element of intent in a criminal prosecution. The Georgia Supreme Court in Franklin had held that the potentially offensive instructions passed constitutional muster but the United States Supreme Court rejected the Georgia decision as automatically legitimatizing the jury charge:

The question, however, is not what the State Supreme Court declares the meaning of the charge to be, but rather what a reasonable juror could have understood the charge as meaning. The federal constitutional question is whether a reasonable juror could have understood the two sentences as a mandatory presumption that shifted to the defendant the burden of persuasion on the element of intent once the State had proved the predicate acts, (citations omitted).

471 U.S. at 315-16, 105 S.Ct. at 1971-72.

An irrebuttable presumption deprives a defendant of his fourteenth amendment due process guarantees by relieving the state of its burden to persuade a jury beyond a reasonable doubt that the defendant committed every essential element of the crime charged. Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). As is explained in Franklin, a rebuttable presumption, if mandatory, is “no less constitutionally infirm,” 471 U.S. at 317, 105 S.Ct. at 1972, than an irrebutta-ble presumption:

A mandatory rebuttable presumption ... relieves the State of the affirmative burden of persuasion on the presumed element by instructing the jury that it must find the presumed element unless the defendant persuades the jury not to make such a finding.

471 U.S. at 317, 105 S.Ct. at 1972.

It is difficult to read the challenged language in section 713.34(3), Florida Statutes (1985), without concluding that the presumption it creates is anything other than mandatory, i.e., “failure to pay ... shall constitute prima facie evidence of intent to defraud.” Even if, as the Ferrari court insisted, the presumption is rebuttable, under Franklin the constitutional infirmity would not be cured. Both the First and Fourth District Courts of Appeal, reviewing the law of rebuttable presumptions in the light of the DUI manslaughter statute, § 316.1934(2)(c), have questioned the continued vitality of Ferrari after Franklin and Norvell. Frazier v. State, 530 So.2d 986 (Fla. 1st DCA 1988); Rolle v. State, 528 So.2d 1208 (Fla. 4th DCA 1988). We conclude, therefore, that although a trial court must follow precedent established by our state supreme court “even though it might believe the law should be otherwise,” State v. Dwyer, 332 So.2d 333, 335 (Fla.1976), the intervening United States Supreme Court decision in Franklin relieved the trial court of that duty in this instance.

Although the trial court dismissed the case against Falcon based upon the unconstitutionality of the statute, we do not share the view that the entire statute is unconstitutional. We find nothing unconstitutional in charging Falcon or any defendant with embezzlement if he has used the proceeds of payments for purposes other than to pay for the specific materials or improvements for which the money was received. As far as we can discern, Falcon was properly charged with a crime, and the charge against him should not have been dismissed. We find that only the following portion of section 713.34(3), Florida Statutes (1985), places an unconstitutional evi-dentiary burden upon the defendant:

... provided, however, that failure to pay for such labor, services or materials furnished for this specific improvement after receipt of such proceeds shall constitute prima facie evidence of intent to defraud.

Finally, we note, without passing upon its validity, that the proviso portion of the statute in question has been amended in an attempt to create a permissive inference. Section 713.34(2), Florida Statutes (1987), provides as follows in pertinent part:

... provided, however, that a person’s intent to defraud may be presumed upon his failure to pay for such labor, services, or materials furnished for this specific improvement after receipt of such loan (emphasis added).

Affirmed in part, reversed in part, and remanded.

HALL, J., concurs.

PARKER, J., concurs in part, dissents in part with an opinion.

PARKER, Judge,

concurring in part, dissenting in part.

I concur with the majority that Falcon can be properly charged with this crime. I, however, dissent from the majority opinion where it declares section 713.34(3), Florida Statutes (1985) unconstitutional. I believe the majority’s decision reaches the correct result. A defendant in a criminal prosecution should never carry any burden of proof regarding an element of the offense. That premise is, so engraved in our federal and state constitutions that the trial court charges each jury with that concept.

However, our supreme court, in State v. Ferrari, 398 So.2d 804 (Fla.1981), has held specifically the statute in question to be constitutional. I recognize that Miller v. Norvell, 775 F.2d 1572 (11th Cir.1985), cert. denied, 476 U.S. 1126, 106 S.Ct. 1995, 90 L.Ed.2d 675 (1986) holds that the statute is unconstitutional However, the United States Supreme Court has not ruled upon the specific statute, and the only federal decisions binding upon the courts of our state are those of the United States Supreme Court. Board of County Comm’rs of Lee County v. Dexterhouse, 348 So.2d 916 (Fla. 2d DCA 1977), aff'd, 364 So.2d 449 (Fla.1978). Contrary to the majority's holding, I do not believe that Franklin requires lower courts in Florida to declare this statute to be unconstitutional, although that would be the result I would reach if not faced with Ferrari.

I believe the result reached by the majority is sound and is based upon solid constitutional principles. However, I believe that before I can agree with the majority, our own supreme court must revisit Ferrari and recede from that decision or the United States Supreme Court must pass upon the constitutionality of the statute. Until that time, I am compelled to stand by Ferrari. This is especially true where the supreme court has specifically reviewed section 713.-34(3), the subsection which the majority finds unconstitutional, and has-held that it passes constitutional scrutiny. The Ferrari court stated:

Appellees argue that section 713.34(3) is overbroad since it is impossible for an honest contractor to operate without violating the statute because the cash flow realities of the construction business frequently mandate that a contractor engaged in numerous projects use funds advanced for one job to pay subcontractors or suppliers on another. They assert that it is common practice for a contractor to use incoming funds to discharge his most pressing obligations and replace them later with the proceeds of other jobs. Whether this practice violates section 713.34(3) depends on the intent of the contractor. Considering the elements of embezzlement discussed above, it is apparent that a contractor may inadvertently misdirect funds without an intent to defraud. In that situation, the statutory presumption of intent to defraud may be rebutted by evidence showing that, even though the contractor misdirected funds while a bill for labor, materials, or services incurred in improving the property is due (or may become due) but remains unpaid, the misdirection was without intent to defraud. It is then for the jury to determine whether the contractor has successfully rebutted the State’s prima facie case.. We reject ap-pellees’ contention that it is not possible for an honest contractor to operate without violating section 713.34(3), and we hold that this statute is not overbroad.
In summary, we hold that section 713.-34(3), Florida Statutes, is not unconstitutionally overbroad or vague. The presumption of prima facie evidence of intent within the statute is also constitutional.

Ferrari, 398 So.2d at 808.

The majority opinion notes that the statute has now been modified. Even though that is so, I would certify the question to the supreme court, requesting that they revisit Ferrari in the light of Norvell and the concepts addressed in Franklin. 
      
       I have no way of knowing the reason for the United States Supreme Court’s denial of certio-rari in Norvell. I do note that three dissenting justices, who would have granted certiorari, believed that the eleventh circuit's decision conflicted with an existing United States Supreme Court case.
     