476 U.S. 1126 (1986)

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U.S. Supreme Court

NORVELL v. MILLER , 476 U.S. 1126 (1986)

476 U.S. 1126

C.L. NORVELL, Sheriff, St. Lucie Jail et al.
Richard MILLER.
No. 85-1359

Supreme Court of the United States

May 19, 1986

On petition for writ of certiorari to the United States Court of Appeals for the Eleventh Circuit.

The motion of respondent for leave to

Page 476 U.S. 1126 , 1127

proceed in forma pauperis is granted. The petition for a writ of certiorari is denied.

Chief Justice BURGER, with whom Justice REHNQUIST and Justice O'CONNOR join, dissenting.

Miller was charged with "misapplication of funds" in connection with the 1978 construction of several homes. The Florida statute under which Miller was charged provides that one of the elements of the crime, the " intent to defraud," can be prima facie established by the "failure to pay for such labor, services or materials furnished for this specific improvement after receipt of such proceeds." Fla.Stat. 713.34(3) (1985).

The state trial court instructed the jury that

    "[p]roof that the defendant failed to pay for such labor, services or materials for any specific improvement from the proceeds of any payment made to him for such specific improvements shall constitute prima facie evidence of intent to defraud. Prima facie evidence means evidence of such nature as is sufficient to establish a fact and which, if unrebutted, remains sufficient for that purpose."

Miller was found guilty and sentenced to 6 months in county jail and 141/2 years' probation. After Miller's conviction was affirmed on direct appeal, he brought this federal habeas action. The District Court denied the application.

The Court of Appeals for the Eleventh Circuit reversed, 775 F.2d 1572 ( 1985), holding that the jury instructions could have been interpreted as creating a "mandatory rebuttable presumption" in violation of Francis v. Franklin, 471 U.S. 307 (1985), and Sandstrom v. Montana, 442 U.S. 510 (1979). Although this holding was sufficient to dispose of the application, the court went on to hold that the statute under which Miller was convicted was unconstitutional. Since the improper jury instructions were a " verbatim" rendition of the statute, the court reasoned, the statute, like the instructions, must fail.

Even if the jury instructions were impermissible under Franklin and Sandstrom, by striking down the underlying statute the Court of Appeals' decision flies in the face of Ulster County Court v. Allen, 442 U.S. 140 (1979), where we considered a facial attack upon a New York statute on the grounds that it impermissibly shifted the burden of proof. As the Court explained, a facial attack to a statute on these grounds will fail if the statute creates [476 U.S. 1126 , 1128]

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