The following is the State Attorney Fifth Circuit brochure on worthless checks and procedures to obtain restitution. The Worthless Check Prosecution Requirements, Procedures and Formsdocument is available for download in Adobe Acrobat format at the bottom of this page.
The giving of a worthless check, BY AND OF ITSELF, is a criminal offense. It is a criminal offense for any person or company to issue a check, knowing at the time of issuance that there are insufficient funds on deposit with the bank.
The giving of a worthless check is a crime, REGARDLESS OF WHETHER THE MAKER (person writing the check):
received anything of value in exchange for the check;
was offering the check in payment of goods already consumed or merchandise to be delivered in the future;
was offering the check as payment on an account or as a layaway.
MAKING RESTITUTION ON A WORTHLESS CHECK DOES NOT CONSTITUTE A DEFENSE OR GROUNDS FOR DISMISSAL OF CHARGES BROUGHT UNDER FLORIDA'S LAW.
FLORIDA'S BAD CHECK LAW PROHIBITS CRIMINAL PROSECUTION IN CASES WHERE:
The person accepting the check has been told, or had reason to believe the writer of the check has insufficient funds to insure payment (for example, you accepted several bad checks from the person in the recent past, accepting a check for a previous bad check);
the check is postdated;
you agree to hold the check until some date in the future and not present it for immediate cashing.
Also be aware that acceptance of partial payment on a prior bad check can preclude you from prosecuting the case criminally.
When a check "bounces", there is imprinted on it or attached to it, the bank's reason for refusing to pay. The introduction of such a dishonored check, with the bank's written or printed reason for refusing to pay it, is EVIDENCE of the maker's knowledge of insufficient funds!
PENALTY UPON CONVICTION:
Generally the issuing of a worthless check for $150 or more for services or merchandise is a Third Degree Felony and if convicted the maker of the check could receive up to 5 years in prison and/or $5,000 fine. If the check is for less than $150, the crime is a First Degree Misdemeanor punishable by up to 1 year in the County Jail and/or $1,000 fine.
PROBLEMS OF CONVICTION - IDENTIFICATION:
The frequency of the use of checks in modern commerce has made it impossible, in many instances, for a witness to later testify that he/she specifically remembers who issued a particular check to him/her.
The Florida Legislature, in recognizing the impossibility of criminal prosecution without a legally acceptable identification of the accused, has created certain identification presumptions.
To take advantage of these legal identification presumptions, the following information, regarding the identity of the party presenting the check, should be obtained by the party accepting the check:
- Full Name
- Home Phone
- Business Phone
- Place of Employment
- Date of Birth
The identification shall be written upon the check itself unless a check cashing card procedure is used.
IN ORDER FOR THIS EVIDENCE TO BE ACCEPTED BY THE COURT, the store or other recipient must carefully comply with the recording of EVERY DETAIL of identification outlined above. Failure to record even one of the named requirements for identification could deny the Prosecutor benefit of the identification presumption.
Where a check card procedure is used, the accepting party shall record on the check the check cashing card identification number. Such check cashing card shall be issued only after information has been placed on file by the merchant and the card contains the signature of the cardholder.
It should be noted that Prosecution of Bad Checks drawn on out-of-state banks is very difficult and the acceptance of out-of-state Driver's Licenses as identification on checks is discouraged as it may result in the prosecution being unable to obtain sufficient legal identification to prosecute. Recommend to your customers that they obtain a Department of Highway Safety Identification Card that is very similar to a Florida Driver's License if they are to be cashing checks in Florida.
The check must be signed or endorsed in the presence of the person accepting the check and the clerk or acceptor MUST INITIAL and date the check acknowledging this fact.
CHECKS RECEIVED BY MAIL:
If a check is received through the mail or from a representative of the maker the proof of the identification of the maker is very difficult.
PROSECUTION/RESTITUTION AND SERVICE CHARGE:
After a check has been returned from the bank marked "Insufficient Funds" or "Account Closed", a service charge based on the amount of the check may be added to the check when making written demand for payment. The service charges are as follows:
- $25.00 - Amount of check between $.01 and $50.00
- $30.00 - Amount of check between $50.01 and $300.00
- $40.00 or 5% (whichever is greater) - Amount of check greater than $300.00
The holder of a check must first make a written demand by either certified or registered mail, evidenced by return receipt to the address given at the time the check was accepted. THE FORM OF SUCH NOTICE SHALL BE SUBSTANTIALLY AS FOLLOWS:
"You are hereby notified that a check numbered ____, issued by you on date drawn upon name of bank and payable to payee has been dishonored. Pursuant to Florida law you have fifteen (15) days from receipt of this notice to tender payment of the full amount of such check plus a service charge of *** or an amount of up to 5% of the face amount of the check, whichever is greater, the total amount due being $ ________. 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 amount of the check, a service charge, court costs, reasonable attorney fees, and incurred bank fees, as provided in §68.065."
NOTICE MAILED BY CERTIFIED OR REGISTERED MAIL, EVIDENCE 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 accused maker of the worthless check will have fifteen (15) days to make restitution, including the service charge, before prosecution through the State Attorney's Office will be commenced. The law exempts the holder of the check from civil liability for proceeding with such action when the NOTICE procedure is used as outlined above.
The next step, after completing the procedures outlined, is to report the matter to the proper authorities. Normally this will be done by going to your local Police Agency or State Attorney's Office and filling out a Worthless Check Affidavit.