Florida Statute §832.05 - Giving Worthless Checks, Drafts, and Debit Card Orders
According to the National Check Fraud Center, merchants take in billions of dollars’ worth of bad checks each year. One of the most common theft crimes in the State of Florida is the crime of writing worthless checks. In the State of Florida, it is a crime to purchase goods or services using a check knowing the checking account associated with that check will not have enough money to cover the purchase. In the State of Florida, Worthless Check Laws encompass several types of commercial paper and orders to pay money, including debit cards, money orders, and other drafts for payment. Florida's Worthless Check Laws also outlaws depositing or cashing a financial instrument with the intention to defraud.
The penalties received when an individual is convicted of Giving Worthless Checks will depend on the amount of money the bad check was written. The punishments could range from a small fine with a short period of probation to several years in jail and thousands of dollars in legal fees and restitution.
Postdated Checks Mean Nothing in the State of Florida
In the State of Florida, banks are permitted to cash a check prior to the date written on the check. In other words, postdating a check does not mean the check cannot be cashed, deposited, or clear your checking account. In fact, most people, merchants, and banks routinely cash or deposit checks before the date on the check. Also, there are no federal laws or regulations that prevent an individual from cashing, depositing, or processing a postdated check before the date on the check. Florida is one of the few states that provide legal protections to banks that cash postdated checks.
According to Florida Statute 655.86, an individual who is intending to write a postdated check, the check writer is required to contact their bank in writing and provide a "complete description thereof, including the name of the payee, the date, the number and the amount thereof." Failure to provide this information, the bank or financial institution cannot be held liable for paying on the postdated check. However, even if you do contact your bank, Florida law does not address the bank's liability.
According to Florida Statute Florida Statute §832.05, writing a check when there was not enough money to cover the check may not always be a crime. One of the essential elements of determining if the worthless check writing is a crime or not is whether or not it can be proved that the check writer knew there wasn't enough money in the check writer's checking account at the time of writing the check. Prosecutors must be able to prove this element for the action to be a crime.
The following check notations might be prosecuted according to Florida's Worthless Check Statute:
- Account closed
- Insufficient funds
- No such account (exists)
- N.S.F. (NSF, non-sufficient funds)
- Refer to maker
- Uncollected funds
Even though these bank notations may not be characteristic of a theft crime, anyone accused of Writing Worthless Checks will have to overcome one challenge:
An individual who makes, utters, draws, or delivers a worthless check or other financial payment or order that is refused by the bank for non-sufficient or insufficient funds at a later date will automatically have to defend themselves against a prima facie presumption that the check writer understood the funds were non-sufficient or that they had the intention to defraud. In other words, if law enforcement determines that a worthless check has been written, unlike typical criminal charges, the defendant must prove to the courts that he or she was unaware that there were not enough funds in the checking account to cover the check.
To avoid being charged with a crime, the check writer has only a few days to pay the holder of worthless check the total amount due with any applicable late or service fees. This must be done within 15 days of the check writer receiving the worthless or bounced check notice.
Many people are unaware that even if the check writer takes the aforementioned corrective actions, the check writer could still face criminal prosecution, or the worthless check writing charge may not be dismissed. In many cases, prosecutors in worthless check cases are usually more concerned with ensuring the victim receives additional restitution. In some cases, if an experienced attorney and repayment represent you were initiated before the criminal trial, your attorney may persuade the prosecutor to place you into a diversion program instead of prison. However, you must have an experienced worthless or bad check criminal defense attorney to negotiate on your behalf.
Defenses to Writing a Worthless Check Criminal Charges
One of the biggest, most common mistakes people charged with a bad check crime commits is trying to seek a plea deal. Often times, people charged with a crime feel guilty and decide that they should just accept the punishment. A plea deal is not your only option. Of course, each case is unique and there will be a different set of circumstances and challenges to overcome. However, there are several effective legal defenses to worthless check criminal charges such as:
- The “Postdated Check” Defense – It could be a valid defense if an individual postdates a check, and that check is accepted another person or a retailer with a mutual agreement to hold the check until the date written on the check.
- The “Lack of Knowledge of Insufficient Funds” Defense – Florida´s criminal statute states that the check write must "knowingly” write a worthless check for the act to be a crime. It is not a crime if the check writer made an honest error.
- The “Agreement to Delay Deposit Defense” – It is not a crime if the individual or business accepts a check knowing that the check would not cover the amount written on the check at the moment the check was accepted as payment. Many times, people will ask a vendor or individual to accept the check but to wait a specified period of time for the check writer's employment check to clear the bank or some other reason to “hold the check” for a few days. If the individual or business agrees to this and still presents the check for payment before the agreed upon date, this may be an effective defense to a worthless check criminal charge.
There are several circumstances in which the criminal charges may be settled without a criminal conviction. Due to the severe negative consequences of a criminal conviction, it is essential that you seek legal counsel when charged with a crime. Contact Musca Law if you have been accused of any fraud crimes.