Definition of Worthless Check
Under Section 832.05(2)(a), Florida Statutes, it is a criminal offense for any person, firm, or corporation to obtain any services, goods, or other things of value by means of a check, draft, or other written order knowing at the time of the issuance of such check that there are insufficient funds on deposit to cover the transaction.
Although most prosecutions under the statute are directed at “bounced” or “bad” checks, the statute applies to a variety of orders to pay money and “commercial paper,” and to a variety of types of drawees and transactions. It even applies to debit cards.
To prove the crime of Worthless Check under Florida Statute Section 832.05(4) (the most commonly charged subsection), the prosecution must establish the following six elements beyond a reasonable doubt:
- The defendant “drew” or “uttered” or “issued” or delivered a check (or other qualifying payment order or commercial paper);
- The defendant did so to obtain services, goods, wares, or other things of value;
- The services, goods, wares, or other things alleged had some monetary value;
- When the defendant did so, there were insufficient funds on deposit in the bank to pay the check;
- The defendant knew (when the check was written) that there were insufficient funds in the bank; and
- The defendant knew there was no arrangement or understanding with the bank for the payment of the check.
- See Fla. Std. Jury Instr. (Crim) 17.4 (Worthless Check- Obtaining Property)
When is Worthless Check a Crime?
Florida’s worthless / bounced check law does not criminalize the mere writing a check when there are inadequate funds in your bank account. The law requires the prosecution to show that the accused knew (at the time the check was made or issued) that there were insufficient funds in his or her account. Thus, there is a knowledge element that must be met.
However, in any prosecution for bad check or bounced check violations, the making, drawing, uttering, or delivery of a check (or other payment order), which is later refused by the bank because of lack of funds in the accused’s account, is prima facie evidence of intent to defraud or knowledge of insufficient funds.
Thus, where the accused issues a bad check, a rebuttable presumption is created that the accused knew there were insufficient funds to cover the payment order represented by the check. The only exception is where the accused (the check maker and issuer) pays the holder of the instrument (the person who was to be paid with the check) the total amount due, together with applicable service fees, within 15 days after the holder sends written notice of the bad check, bounced check, or worthless check.
No crime may be charged in respect to the giving of a worthless or bad check when the payee (the person receiving the check or payment order) knows, has been expressly notified, or has reason to believe that the accused did not have on deposit sufficient funds in the bank to ensure payment. However, the previous issuance of a bad check by the accused is insufficient to put the payee on notice.
Penalties for Worthless Check
The penalties available in a Worthless or Bad Check case depend on the amount of the check involved in the transaction.
- Where the check issued is in an amount less than $150.00, the offense is classified as a first degree misdemeanor, punishable by up to 1 year in jail.
- Where the check is in an amount of $150.00 or more, the offense is a third degree felony, punishable by up to 5 years imprisonment.
Defenses to Worthless Check
There are many defenses available under Florida law to contest a charge of worthless check, bad check, or bounced check. Some of the most common defenses include:
- Will the prosecution be able to obtain bank records within the 90-day misdemeanor speedy trial period (if the charge is a misdemeanor)?
- Can they prove the accused’s identity?
- Can they prove that something of value was actually obtained from the transaction?
- Did the accused know that there were insufficient funds, or did he or she make a simple mistake?
- Did the accused sign in an individual capacity, or as an agent of a company or other entity?
- Did the payee delay in depositing the check?
- Did the payee have notice or reason to know there were insufficient funds?
- Did the accused believe the bank would cover the transaction if the funds in the account proved insufficient?
- Did the accused believe there was overdraft protection?
- Did the accused believe there was adequate credit with the bank to cover the transaction?
- Has the prosecution for worthless or bad check been brought within the statute of limitations period; For additional information on this topic, view our sample Motion to Dismiss Worthless Check Charges.
Worthless check cases are labor-intensive and sometimes difficult to prove. Often, these cases can be resolved through diversion programs or in a manner that spares the accused of a technical conviction.
Contact an Attorney
A Florida prosecution for worthless check, bad check, or bounced check is a serious matter that should not be taken lightly. In appropriate cases, a defense attorney can raise defenses on your behalf to contest the charge or to minimize potential penalties.
If you have been charged with Worthless Check in West Palm Beach, Palm Beach County, Broward County, Martin County, or St. Lucie County, Florida, contact attorney Steven Sessa for a free consultation.