Analysis of Criminal and Civil Penalties For Writing Bad Checks in Florida

By Charles B. Jimerson, Esq.

As the economy continues to tank and dead beat debtors begin to pass more and more bad checks, I have found it to be a prudent time to revisit the laws pertaining to writing bad checks in Florida. In general, the term ‘check’ means a draft, other than a documentary draft, payable on demand and drawn on a bank or a cashier’s check or teller’s check. An instrument may be a check even though it is described by another term, such as ‘money order.’ Fla. Stat. § 673.1041(6). A ‘draft,’ in reference to a check, is a three-party instrument by which the drawer order the drawee to pay money to the payee, and the drawee is a bank.

Fla.Stat. §68.065 (for civil actions to collect worthless checks, drafts, or orders of payment) allows for recovery of treble damages, service charges, attorneys’ fees, and costs if its provisions are not followed. Before litigation is initiated, the form of notice set forth in Fla.Stat. §68.065 must be delivered by certified or registered mail, or by first-class mail, evidenced by an affidavit of service of mail, to the maker or drawer of the check, draft, or order of payment. If notice is properly provided, the maker or drawer will be liable to the payee for, in addition to the amount owing on the check, damages of triple the amount owing, a statutory service charge based on the check amount, reasonable attorneys’ fees, and court costs. If the notice is sent via certified mail and the recipient refuses to claim the notice or sign the postal receipt, the statutory notice requirement is satisfied.

Any person who issues worthless checks may be prosecuted criminally under Chapter 832 of the Florida Statutes. A person is presumed to have the intent to defraud or knowledge of insufficient funds in the drawee bank unless he or she, or someone for him or her, have paid the holder of the worthless check the face amount of the check, together with a service charge not to exceed the service fees authorized under Section 832.08(5) of the Florida Statutes or an amount of up to 5 percent of the face amount of the check, whichever is greater, within 15 days (30 days for civil actions) after receiving written notice that such check has not been paid to the holder thereof, and bank fees incurred by the holder. Fla.Stat. § 832.07

This penalty does not apply to any check when the payee or holder knows or has been expressly notified prior to the drawing or uttering of the check, or has reason to believe, that the maker did not have on deposit or to the maker's credit with the drawee sufficient funds to ensure payment, nor does this apply to any postdated check. Fla.Stat. § 832.05(2)(a).)

The required Notice must be mailed by certified or registered mail, evidenced by return receipt, to the address printed on the check or given at the time of issuance and may be deemed sufficient and equivalent to notice having been received by the maker or drawer, whether such notice is returned undelivered or not as set forth above. The form of the written notice demanding payment is required to be substantially as follows (Fla. Stat. § 832.07 and Fla.Stat. §68.065):

"You are hereby notified that a check, numbered _____, in the face amount of $_____, issued by you on (date) , drawn upon (name of bank) , and payable to _____, has been dishonored. Pursuant to Florida law, you have 30 days from receipt of this notice to tender payment of the full amount of such check plus a service charge of $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 an amount of up to 5 percent of the face amount of the check, whichever is greater, the total amount due being $_____ and _____ cents. Unless this amount is paid in full within the time specified above, the holder of such check may turn over the dishonored check and all other available information relating to this incident to the state attorney for criminal prosecution. You may be additionally liable in a civil action for triple the amount of the check, but in no case less than $50, together with the amount of the check, a service charge, court costs, reasonable attorney fees, and incurred bank fees, as provided in s. 68.065 and/or s. 832.07."

Subsequent persons receiving a check from the original payee or a successor endorsee have the same rights that the original payee has against the maker of the instrument, provided such subsequent persons give notice in a substantially similar form to that provided above. Subsequent persons providing such notice shall be immune from civil liability for the giving of such notice and for proceeding under the forms of such notice, so long as the maker of the instrument has the same defenses against these subsequent persons as against the original payee. However, the statutory remedies available may be exercised only by one party in interest. Fla. Stat. § 832.07.

In any prosecution or action on a worthless check, payment of the check by the debtor does not constitute a defense or ground for dismissal of the charges. Fla. Stat. § 832.05(5). If the court determines that the failure to satisfy the dishonored check was due to economic hardship, however, the court has the discretion to waive all or part of the statutory damages.

In a criminal prosecution, the maker of the worthless check may be subject to a misdemeanor charge if the violation involves a misdemeanor and the check amount is less than $150.00, or a felony if the check is in excess of that amount. Fla.Stat. § 832.05(4)(c). Penaltiesmay include up to 5 years in prison or a $1,000 fine for Felonies and up to $300 or six months in jail for Misdemeanors.

http://jimersoncobb.com/blawg/2010/08/30/the-penalties-for-passing-a-bad-check-in-florida/