Florida law prohibits someone from writing or passing a check when they know that the account on which the check is drawn has insufficient funds to cover the amount of the check. That seems simple enough. But the law is actually more complicated than that.
Here at Stechschulte Nell Criminal Defense law firm in Tampa, we know that people often write “bad” checks or use their debit cards without any intent to defraud or steal from anyone. Instead, some of our law-abiding neighbors sometimes forget to balance their checkbook or assume that a deposited check cleared before it has, or were accidentally overdrawn on their checking account. It’s not a crime to make a mistake. But you need to know the consequences that can result from repeated carelessness.
The Florida Worthless Check Law
The key difference between a mistake and a crime is the intent of the person who wrote or passed the check. F.S. § 832.05 (2)(a) provides that,
“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[.]”
It is not unlawful, however, when the person accepting the check knows or was expressly notified before accepting the check that the check was not covered by sufficient funds on deposit in the account. It’s also not unlawful when the person accepting the check “has reason to believe” that the person drawing the check doesn’t have enough money in the account to cover the check.
Who Would Accept a Check Knowing There Are Insufficient Funds?
Writing a check when you know there are insufficient funds in the account sounds like it would never be legal. But many people who are familiar with one another accept checks and agree to wait before depositing the check. It may be a courtesy to the person writing the check, whom they know and whom they trust to deposit the money very soon after writing the check. If the person writing the check never deposits the money to cover the check, the Florida worthless check law does not apply and they may not be prosecuted.
Post-Dated Checks are another example in which someone accepts a check knowing that there probably is not enough money in the account to cover the check. Post-dating a check is actually a contract to pay later. By being post-dated, the check does not become valid until that future date. Until then, it is merely a promissory note. If the check ultimately bounces, it’s a civil matter. It’s not a crime.
The Law Presumes Wrongful Intent (Rebuttable)
The law in Florida creates a rebuttable presumption that the person who wrote the bad check knew the account had insufficient funds. Unless a person makes good on the bad check, they wrote by making restitution within 15 days of receiving notice that the check bounced, the law permits criminal prosecution to begin. The 15-day grace period allows a person who innocently or mistakenly wrote the check without sufficient funds to make restitution for the check, along with any additional bank fees incurred by the person who accepted the check.
Failure to pay the amount of the check after being notified that it bounced is interpreted by the law as evidence that the maker of the check intended to defraud the payee.
Penalties for Writing a Worthless Check
Check Under $150 is a 1st Degree Misdemeanor:
- The penalty in Florida for writing a worthless check for an amount less than $150 is up to 1 year in jail and a fine of up to $1,000.
Check for $150 or More is a 3rd Degree Felony:
- The penalty in Florida for writing a worthless check for $150 or more is up to 5 years in prison and a $5,000 fine.
Defenses to Uttering or Publishing a Worthless Check in Florida
The crime of knowingly writing a worthless check, intending to obtain something of value without paying, is sometimes called “uttering and publishing” a bad check. People who commit this offense regularly are even called “paper hangers.” Proving that a defendant intentionally wrote or passed a worthless check requires that several “elements” be demonstrated by evidence and proof beyond a reasonable doubt, not an easy chore for some prosecutors.
To obtain a conviction under F.S. § 832.05, the prosecution needs to prove that:
- it was the defendant who wrote the check,
- the defendant knew there were insufficient funds in the account on which the check was drawn,
- the defendant intended to obtain something of value in exchange for the worthless check,
- the object, service, or other item obtained did have some value,
- the defendant knew they did not have “overdraft” protection, an arrangement in which the bank would cover the check for the defendant despite insufficient funds in the account,
Successfully defending worthless check charges in Florida could involve an experienced lawyer raising a reasonable doubt based on one of the following defenses:
- the defendant is not the person who wrote the check (misidentification),
- the defendant believed there were sufficient funds in the account (mistaken belief in good faith),
- the defendant thought they had overdraft protection or other credit with the bank that would cover the check,
- the defendant told the payee not to deposit the check until a certain date before the payee accepted it,
- the check was post-dated,
- the payee held the check too long; there were funds in the account when the check was passed.
Case Result > Felony Worthless Check
Get Experienced Criminal Defense for Bad Checks in Tampa and St. Petersburg
If you or your family member are charged with writing or passing a worthless check anywhere in Hillsboro County or Pinellas County, Attorneys Ben Stechschulte and Amy Nell will use their years of experience representing other accused people facing similar charges. The facts of every case are different, and attorneys Stechschulte and Nell analyze your case to decide how to best defend your charges.
Trust the experience of Tampa’s certified criminal defense lawyers. Call Stechschulte Nell for a case review today at 813-280-1244.