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check kiting

Bad (Worthless) Checks

A bad check of $150.00 or more is a felony.  Stopping payment on a check is only a crime if it was stopped with the intent to defraud someone.  It is a defense to this charge if the check was post-dated.

832.041. Stopping payment with intent to defraud

(1) Whoever, with intent to defraud any person shall, in person or by agent, make, draw, utter, deliver, or give any check, draft, or written order for the payment of money upon any bank, person, or corporation and secure from such person goods or services for or on account of such check, draft, or written order, whether such goods or services are valued at the amount of such check, draft, or written order or at a greater or lesser value, and who shall, pursuant to and in furtherance of such intent to defraud, stop payment on such check, draft, or written order, shall be deemed to be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084, if the value of the goods or services secured for or on account of such check, draft, or written order is $150 or more;  and if the value of the goods or services secured for or on account of such check, draft, or written order is less than $150, he shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

(2) This section shall be taken to be cumulative and shall not be construed to repeal any other statute now in effect.

832.05. Giving worthless checks, drafts, and debit card orders;   penalty;  duty of drawee;  evidence;  costs;  complaint form

(1) Purpose.—The purpose of this section is to remedy the evil of giving checks, drafts, bills of exchange, debit card orders, and other orders on banks without first providing funds in or credit with the depositories on which the same are made or drawn to pay and satisfy the same, which tends to create the circulation of worthless checks, drafts, bills of exchange, debit card orders, and other orders on banks, bad banking, check kiting, and a mischief to trade and commerce.

(2) Worthless checks, drafts, or debit card orders;  penalty.—

(a) It is unlawful for any person, firm, or corporation to draw, make, utter, issue, or deliver to another any check, draft, or other written order on any bank or depository, or to use a debit card, for the payment of money or its equivalent, knowing at the time of the drawing, making, uttering, issuing, or delivering such check or draft, or at the time of using such debit card, that the maker or drawer thereof has not sufficient funds on deposit in or credit with such bank or depository with which to pay the same on presentation;  except that this section 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 drawer did not have on deposit or to his credit with the drawee sufficient funds to ensure payment as aforesaid, nor does this section apply to any postdated check.

(b) A violation of the provisions of this subsection constitutes a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083, unless the check, draft, debit card order, or other written order drawn, made, uttered, issued, or delivered is in the amount of $150, or its equivalent, or more and the payee or a subsequent holder thereof receives something of value herefore.  In that event, the violation constitutes a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(3) Cashing or depositing item with intent to defraud;  penalty.—

(a) It is unlawful for any person, by act or common scheme, to cash or deposit any item, as defined in s. 674.104(1)(i), in any bank or depository with intent to defraud.

(b) A violation of the provisions of this subsection constitutes a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(4) Obtaining property or services in return for worthless checks, drafts, or debit card orders;  penalty.—

(a) It is unlawful for any person, firm, or corporation to obtain any services, goods, wares, or other things of value by means of a check, draft, or other written order upon any bank, person, firm, or corporation, knowing at the time of the making, drawing, uttering, issuing, or delivering of such check or draft that the maker thereof has not sufficient funds on deposit in or credit with such bank or depository with which to pay the same upon presentation.  However, no crime may be charged in respect to the giving of any such check or draft or other written order when the payee knows, has been expressly notified, or has reason to believe that the drawer did not have on deposit or to his credit with the drawee sufficient funds to ensure payment thereof.  A payee does not have reason to believe a payor does not have sufficient funds to ensure payment of a check solely because the payor has previously issued a worthless check to him.

(b) It is unlawful for any person to use a debit card to obtain money, goods, services, or anything else of value knowing at the time of such use that he does not have sufficient funds on deposit with which to pay for the same or that the value thereof exceeds the amount of credit which is available to him through an overdraft financing agreement or prearranged line of credit which is accessible by the use of the card.

© A violation of the provisions of this subsection, if the check, draft, other written order, or debit card order is for an amount less than $150 or its equivalent, constitutes a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.  A violation of the provisions of this subsection, if the check, draft, other written order, or debit card order is in the amount of $150, or its equivalent, or more, constitutes a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(5) Payment no defense.—Payment of a dishonored check, draft, bill of exchange, or other order does not constitute a defense or ground for dismissal of charges brought under this section.

(6) “Credit,” “debit card” defined.—

(a) The word “credit” as used herein shall be construed to mean an arrangement or understanding with the drawee for the payment of such check, draft, or other written order.

(b) As used in this section, the term “debit card” means a card, code, or other device, other than a check, draft, or similar paper instrument, by the use of which a person may order, instruct, or authorize a financial institution to debit a demand deposit, savings deposit, or other asset account.

(7) Reason for dishonor, duty of drawee.—It is the duty of the drawee of any check, draft, or other written order, before refusing to pay the same to the holder thereof upon presentation, to cause to be written, printed, or stamped in plain language thereon or attached thereto the reason for the drawee’s dishonor or refusal to pay it.  In any prosecution under this section, the introduction in evidence of any unpaid and dishonored check, draft, or other written order having the drawee’s refusal to pay stamped or written thereon or attached thereto, with the reason herefore as aforesaid, is prima facie evidence of the making or uttering of such check, draft, or other written order, of the due presentation to the drawee for payment and the dishonor thereof, and that the same was properly dishonored for the reasons written, stamped, or attached by the drawee on such dishonored check, draft, or other written order.  As against the maker or drawer thereof, the withdrawing from deposit with the drawee named in the check, draft, or other written order of the funds on deposit with such drawee necessary to ensure payment of such check, draft, or other written order upon presentation within a reasonable time after negotiation or the drawing, making, uttering, or delivering of a check, draft, or written order, payment of which is refused by the drawee, is prima facie evidence of knowledge of insufficient funds in or credit with such drawee.  However, if it is determined at the trial in a prosecution hereunder that the payee of any such check, draft, or written order, at the time of accepting such check, draft, or written order, had knowledge of or reason to believe that the drawer of such check, draft, or other written order did not have sufficient funds on deposit in or credit with such drawee, then the payee instituting such criminal prosecution shall be assessed all costs of court incurred in connection with such prosecution.

(8) Costs.—When a prosecution is initiated under this section before any committing magistrate, the party applying for the warrant shall be held liable for costs accruing in the event the case is dismissed for want of prosecution.  No costs shall be charged to the county in such dismissed cases.

(9) State attorneys;  worthless checks;  form of complaint.—The state attorneys of Florida shall collectively promulgate a single form to be used in all judicial circuits by persons reporting a violation of this chapter.

832.07. Prima facie evidence of intent;  identity

(1) Intent.—

(a) In any prosecution or action under this chapter, the making, drawing, uttering, or delivery of a check, draft, or order, payment of which is refused by the drawee because of lack of funds or credit, shall be prima facie evidence of intent to defraud or knowledge of insufficient funds in, or credit with, such bank, banking institution, trust company, or other depository, unless such maker or drawer, or someone for him, shall have paid the holder thereof the amount due thereon, together with a service charge not to exceed the service fees authorized under s. 832.08(5) or an amount of up to 5 percent of the face amount of the check, whichever is greater, within 7 days after receiving written notice that such check, draft, or order has not been paid to the holder thereof, and bank fees incurred by the holder. In the event of legal action for recovery, the maker or drawer may be additionally liable for court costs and reasonable attorney’s fees.  Notice mailed by certified or registered mail, evidenced by return receipt, to the address printed on the check or given at the time of issuance shall be deemed sufficient and equivalent to notice having been received by the maker or drawer, whether such notice shall be returned undelivered or not. The form of such notice shall be substantially as follows:”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 7 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.”Subsequent persons receiving a check, draft, or order 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 remedies available under this section may be exercised only by one party in interest.

(b) When a check is drawn on a bank in which the maker or drawer has no account or a closed account, it shall be presumed that such check was issued with intent to defraud, and the notice requirement set forth in this section shall be waived.

(2) Identity.—

(a) In any prosecution or action under the provisions of this chapter, a check, draft, or order for which the information required in paragraph (b), paragraph (d), paragraph (e), or paragraph (f) is available at the time of issuance constitutes prima facie evidence of the identity of the person issuing the check, draft, or order and that such person is authorized to draw upon the named account.

(b) To establish this prima facie evidence:

1. The driver’s license number or state identification number, specifying the state of issuance of the person presenting the check must be written on the check;  or

2. The following information regarding the identity of the person presenting the check must be obtained by the person accepting such check:  The presenter’s full name, residence address, home phone number, business phone number, place of employment, sex, date of birth, height and race.  This information shall be written upon the check.

© The information required in subparagraph (b)2. May be provided by either of two methods:

1. The information may be recorded on the check;  or

2. The number of a check-cashing identification card issued by the accepter of the check may be recorded on the check.  In order to be used to establish identity, such check-cashing identification card may not be issued until the information required in subparagraph (b)2. Has been placed on file with the accepter of the check.

(d) If a check is received by a payee through the mail or by delivery to a representative of the payee, the prima facie evidence referred to in paragraph (a) may be established by presenting the original contract, order, or request for services that the check purports to pay for, bearing the signature of the person who signed the check, or by presenting a copy of the information required in subparagraph (b)2. Which is on file with the accepter of the check together with the signature of the person presenting the check.

(e) If a check is received by a payee and the drawer or maker has a check-cashing identification card on file with the payee, the prima facie evidence referred to in paragraph (a) may be established by presenting the signature found on the check-cashing identification card bearing the signature of the person who signed the check.

(f) If a check is received by the Department of Revenue through the mail or by delivery to a representative of the Department of Revenue, the prima facie evidence referred to in paragraph (a) may be established by presenting the original tax return, certificate, license, application for certificate or license, or other document relating to amounts owed by that person or taxpayer which the check purports to pay for, bearing the signature of the person who signed the check, or by presenting a copy of the information required in subparagraph (b)2. Which is on file with the accepter of the check together with the signature of the person presenting the check.  The use of taxpayer information for purposes of establishing the identity of a person pursuant to this paragraph shall be considered a use of such information for official purposes.

832.08. State attorney bad check diversion program;  fees for collections

(1) In any judicial circuit where a bad check diversion program is not in existence as of October 1, 1986, the state attorney may establish such a program, either within his office or through an independent contractor, for the purpose of diverting from prosecution certain persons accused of a violation of s. 832.04, s. 832.041, s. 832.05, or s. 832.06.  The use of such a diversion program shall not affect the authority of the state attorney to prosecute any person for any such violation.

(2) Upon receipt of a complaint alleging any such violation, the state attorney shall determine if the case is appropriate for referral to the bad check diversion program by considering:

(a) The amount of the bad check.

(b) The prior criminal record of the defendant.

© Whether or not there are other bad check complaints currently pending against the defendant.

(d) The strength of the evidence of intent to defraud the victim.

(3) Upon referral of a complaint to the bad check diversion program, the state attorney shall forward a notice of the complaint by mail to the defendant.  The notice shall contain all of the following:

(a) The date and amount of the check.

(b) The name of the payee.

© The date before which the defendant must contact the bad check office concerning the complaint.

(d) A statement of the penalty for issuance of a bad check.

(4) If the state attorney allows the defendant to enter into a diversion program, the state attorney shall enter into a written agreement with the defendant to divert him on bad check charges.  The diversion agreement shall include all of the following conditions, which must be accepted by the defendant:

(a) Attendance at a program designed to assist and educate persons who have violated the provisions of this chapter.

(b) Full restitution on the check.

© Full payment of fees due under subsection (5).

(d) Any individual who does not fulfill the agreements for diversion could then be prosecuted under the appropriate section.

(e) A knowing and intelligent waiver of his right to a speedy trial for the period of his diversion.

(5) To fund the diversion program, the state attorney may collect a fee on each check that is collected through his office, whether it is collected through prosecution or through the diversion program.  However, the state attorney may not collect such a fee on any check collected through a diversion program which was in existence in another office prior to October 1, 1986.  A fee may be collected by an office operating such a preexisting diversion program for the purpose of funding such program.  The amount of the fee for each check shall not exceed:

(a) Twenty-five dollars, if the face value does not exceed $50.

(b) Thirty dollars, if the face value is more than $50 but does not exceed $300.

(c) Forty dollars, if the face value is more than $300.

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