Bad Checks – Worthless Check Offenses
Florida Statutes Chapter 832 prohibits the writing of bad checks, drafts, and debit card orders, or stopping payment on a check, draft, or written order with intent to defraud. If you have been charged with this offense in Pinellas County, it is important that you be aware of three important aspects of the law:
- If you were aware that there were insufficient funds available to cover the check at the time you obtained goods or services, you have committed a crime.
- In writing the bad check and exchanging it for goods or services, the law infers that you have already demonstrated the necessary intent that the check be honored.
- Making good on a worthless check by later paying the full amount in cash does not serve as a valid defense for the violation of this offense. The rationale for this under Florida law is that the crime was already committed at the time you passed or uttered the worthless check.
How Your Check Case Was Referred to the Pinellas County State Attorney’s Office:
In order to refer a Pinellas County Worthless Check case to the State Attorney’s Office, a business or individual must mail all of the following information to the Sixth Judicial Circuit’s State Attorney’s Office located in Clearwater, New Port Richey or Dade City:
- An affidavit and a witness form for each worthless check received. (View a sample worthless check affidavit or a sample witness form.)
- The original check
- The return receipt or affidavit of service of mail
- A copy of the notice sent to the check writer
- Any other documents pertaining to the dishonored check
Was Your Case Originally Considered for the Bad Check Diversion Program?
It is the policy of the Pinellas County State Attorney’s Office to investigate the check writer’s criminal history to determine if he is eligible for the Bad Check Diversion Program. The Bad Check Diversion Program is a pre-information diversion program that handles almost all worthless check cases with the exception of forged checks, stolen checks or checks marked stopped payment. The program is designed to avoid formal prosecution by seeking immediate restitution and the payment of service fees to the business or individual who received the dishonored check. To determine eligibility into the diversion program, the State Attorney examines the facts of each case and the check writer’s background including:
- The amount of the bad check
- The prior criminal record of the defendant
- Whether or not there are other bad check complaints currently pending against the defendant
- The strength of the evidence of intent to defraud the victim
If the check writer qualifies for the program, the State Attorney sends the defendant a Notice to Appear at their Clearwater office location for an informal hearing. At the hearing, the State Attorney enters into a written agreement with the check writer who agrees to complete the following requirements:
- Attend a three hour course designed to assist and educate persons who have passed worthless checks
- Pay full restitution on the check
- Pay service and processing fees
If the check writer fails to fulfill these conditions, the State Attorney can then proceed to criminally prosecute the defendant. However, if these stipulations are met, the case will be closed and no further action will be taken. Learn more about the Bad Check Diversion Program.
What if You Were Never Contacted by the Bad Checks Diversion Program?
Many clients tell us they were never contacted by the Bad Check Diversion or Restitution Program. This could be the case because:
- The State Attorney’s Office did not feel you were a good candidate; or
- They made an effort to contact you, but they were unsuccessful because you no longer resided at the address that appeared on the check.
Regardless of the reason, if you have an outstanding warrant, been arrested or received notice of an upcoming court date for a worthless check or check kiting charge, then a formal prosecution has already commenced. As a result, you are no longer eligible to participate in the Bad Check Diversion Program. However, there may be other options available to you designed to avoid incarceration and to avoid formal conviction.
Outstanding Warrant for Bad Check
Penalties for Misdemeanor Bad Check
Stopping Payment with Intent to Defraud – Value less than $150.00
- second degree misdemeanor;
- maximum penalty of 60 days in jail; and
- $500 fine
Writing a Check with Knowledge of Insufficient Funds Available – Value less than $150.00
- a first degree misdemeanor;
- maximum penalty of 1 year in jail ; and
- $1,000 fine
Drivers License Suspension
If you are being prosecuted for passing a worthless check in the St. Petersburg / Clearwater area, you or your lawyer will be required to appear in court. If you fail to hire an attorney, or subsequently fail to appear in court:
- The Judge will issue a capias/warrant for your arrest;
- The Judge will suspend your drivers license pursuant to Florida Statute Sec. 832.09.
Your Future Job and Credibility Could Be at Risk
Both felony and misdemeanor worthless check offenses are categorized in the criminal justice system as crimes of dishonesty or untruthfulness. As a result, if you are formally convicted of a worthless check offense, your credibility will forever be at issue. In applying for future employment, many occupations demand that you divulge any prior felonies or crimes involving untruthfulness or dishonesty. This would include worthless check convictions. This same standard applies as a prerequisite when applying for a professional license. Careers in law enforcement, accounting, teaching, real estate, medicine, banking & finance or law typically require you to reveal such convictions and your worthless check case could serve as the sole basis for denying you licensure. Aside from future career opportunities, any future statements that you provide in a court of law can be impeached because of your worthless check conviction, regardless of whether you are a plaintiff, witness or defendant. For example, if you become the victim of an auto accident and you are required to appear in civil court to seek a recovery, the lawyer representing the other driver is permitted to ask you the following question in an effort to discredit your testimony: “Isn’t it true that you have been convicted of a felony or a crime of untruthfulness or dishonesty?” Our office can help you explore possible defenses to the charge and the potential methods to avoid formal conviction.
Possible Defenses to Bad Checks
Several defenses may be available to combat a worthless check criminal charge. You can not be prosecuted for writing a bad check if:
- The check was incompletely filled out or was illegible
- The check was not deposited within a timely fashion (typically 30 days)
- The check only had one signature, even though two signatures were required
- The recipient of the check agreed to hold the check before depositing it (no matter how short of a time they held it)
- The check was postdated
- The recipient knew or had reason to know that the check writer had deficient funds in the bank to honor the check
- The bank did not officially acknowledge the check by not stamping or imprinting on the check the reason it was dishonored
An experienced St. Petersburg / Clearwater attorney can consider the facts of your case and determine whether your situation qualifies for one of the above mentioned defenses.
Were Your Bad Checks Charges Processed Properly?
In order to seek prosecution for a worthless check offense, businesses and citizens must follow a precise procedure. The business or individual must have evidence to establish the identity of the check writer at the time the check was accepted. This can be verified by: The check writer’s driver’s license number, or the following information listed on the check or a check-cashing identification card:
- Full Name of the Check Writer
- Current Residence Address
- Home Telephone Number
- Business Telephone Number
- Place of Employment
- Date of Birth
Once the bank denies payment of the check, the business or individual must make an effort to notify the check writer that his check was dishonored. This notice must be sent by certified mail with a return receipt or by U.S. Mail with an affidavit of service of mail. After sending the notice, the check writer is afforded a grace period of fifteen days to avoid prosecution by immediately paying restitution along with a statutory “service charge.” The mandatory service charge amount is calculated as follows:
- $25 if the face value does not exceed $50;
- $30 if the face value exceeds $50, but does not exceed $300;
- $40 if the face value exceeds $300, or 5% of the face value, whichever is greater
If the check writer does not pay the restitution and fees within the fifteen days, the victim is then entitled to refer the case to the State Attorney’s Office for criminal prosecution.
Does the Florida Statute of Limitations Prevent Prosecution of the Bounced Check?
Any individual or retail establishment that resides or does business in the St. Petersburg / Clearwater area must submit a worthless check complaint at least six months before the statute of limitations expires. For checks exchanged for goods or services less than $150.00, the business or individual has two years from the check’s date to file a complaint. If the goods or services were valued at $150.00 or more, there is a three year statute of limitations from the date that appears on the check. If the check was provided for rent or payment on an account at any value, the statute of limitations is two years from the check’s date.
How We Can Help
Call our office for a free consultation. If you are out of state, or reside outside of the St. Petersburg / Clearwater area, we can handle your case through a “phone-in” consultation. We can discuss with you several strategies that may include:
- A Motion to Dismiss the charge (Because of the State’s failure to process the matter properly or for violation of the statute of limitations)
- Your application into the Pre-Trial Intervention Program (Successful completion of this program will result in a dismissal of the charge).
- A Plea Bargain (Such an agreed upon outcome may entail probation but avoid formal conviction and incarceration. In some misdemeanor cases, probation can even be avoided where through our assistance, our client pre-pays the restitution and service charges before the court proceeding.)
- Pleas in Absentia (Out of State persons facing Misdemeanor Worthless Check charges may avoid returning to Pinellas County through this strategy. A final disposition or plea bargain is drafted by your attorney and mailed to you for your signature before a notary. Your attorney makes all required court appearances on your behalf, avoiding the need for you to miss work and the expense of traveling back to Pinellas County.)
- Outstanding Warrants for Worthless Check Charges (Call us to learn if an outstanding warrant exists in Pinellas County associated with a Worthless Check charge. We may be able to confirm the warrant and tell you the bond amount assigned. More importantly, we can seek to immediately address the warrant problem in an effort to avoid your untimely arrest.
- Sealing / Expungement (Potentially resolving your case in a manner that avoids formal conviction that may entitle you to have your records sealed or expunged.)
Free Consultation Call us to schedule a free consultation at (727) 578-0303
We are St. Petersburg / Clearwater criminal defense lawyers experienced in helping persons charged with Worthless Check offenses. You are invited to meet with us so that we can discuss the individual facts and circumstances of your case. Together, we can adopt a strategy that is best focused on achieving the most desirable outcome.