H. B. 3147
(By Delegates Stephens and Hubbard)
[Introduced March 30, 2001; referred to the
Committee on the Judiciary the Finance.]
A BILL to amend and reenact section thirty-nine-g, article three,
chapter sixty-one of the code of West Virginia, one thousand
nine hundred thirty-one, as amended, relating to raising the
magistrate fee for bad check notices from ten to fifteen
dollars.
Be it enacted by the Legislature of West Virginia:
That section thirty-nine-g, article three, chapter sixty-one
of the code of West Virginia, one thousand nine hundred thirty-one,
as amended, be amended and reenacted to read as follows:
ARTICLE 3. CRIMES AGAINST PROPERTY.
§61-3-39g. Complaint; notice of complaint; issuance of warrant;
payment procedures; costs.
After receipt of a complaint for warrant for a violation of
section thirty-nine or thirty-nine-a of this article the magistrate
court shall proceed with the issuance of the warrant as is provided by law: Provided, That no warrant may issue for an offense under
section thirty-nine or thirty-nine-a of this article which, upon
conviction, would be punishable as a misdemeanor, unless the payee
or holder of the check, draft or order which has been dishonored
has sent notice thereof to the drawer of the check, draft or order
in accordance with the provisions of section thirty-nine-e of this
article, or unless notice has been sent by the magistrate as
hereinafter provided. Proof that the notice was sent by the payee
or holder may be evidenced by presentation of a return receipt
indicating that the notice was mailed to the drawer by certified
mail, or, in the event the mailed notice was not received or was
refused by the drawer, by presentation of the mailed notice itself.
The magistrate court shall receive and hold the check, draft or
order.
Upon receipt of a complaint for a misdemeanor warrant
unaccompanied by proof that notice was sent by the payee or holder,
the magistrate court shall immediately prepare and mail to the
drawer of the check, draft or order a notice in form substantially
as follows. The magistrate court shall impose any service charge
reflected in the complaint as having been imposed on the payee or
holder by the payee's or holder's bank or financial institution in
connection with the check, draft or order and additional court
costs in the amount of ten dollars fifteen dollars. This notice
shall be mailed to the drawer by United States mail, first class and postpaid, at the address provided at the time of presenting the
check, draft or order. Service of this notice is complete upon
mailing. The notice shall be in form substantially as follows:
"You are hereby notified that a complaint for a warrant for
your arrest has been filed with this office to the following effect
and purpose by .............. who upon oath complains that on the
....... day of ..............., 19 20...., you did unlawfully issue
and deliver unto him a certain check, draft or order in the amount
of ......................... drawn on ..........................
(name of bank or financial institution) ......................
where you did not have funds on deposit in or credit with the bank
or financial institution with which to pay the check, draft or
order upon presentation and pray that a warrant issue and that you
be apprehended wherever you may be found by an officer authorized
to make an arrest and dealt with in accordance with the laws of the
state of West Virginia.
"A warrant for arrest will be issued on or after the .........
day of ......................., 19 20......
"You can nullify the effect of this complaint and avoid arrest
by paying to the magistrate court clerk at ......................
the amount due on the check, draft or order; service charges
imposed on the payee or holder by the payee's or holder's bank or
financial institution in connection with the check, draft or order
in the amount of ..........; and the costs of this proceeding in the amount of ten dollars fifteen dollars on or before the
.......... day of ...................., 19 20......, at which time
you will be given a receipt with which you can obtain the check,
draft or order from the magistrate court. The complainant is
forbidden by law to accept payment after the complaint is filed.
Magistrate Court of ...................... County
................................................
Date: .............................."
This notice shall give the drawer of any such check, draft or
order ten days within which to make payment to magistrate court.
In the event the drawer pays the total amount set forth in the
notice to the magistrate court within the ten-day period, no
warrant may issue. The payment may be made to the magistrate court
in person or by mail by cash, certified check, bank draft or money
order and, in the event the payment is made by mail, the magistrate
court clerk shall immediately mail to the maker of the check, draft
or order the receipt required by this section. In the event the
total amount is not so paid the court shall proceed with the
issuance of the warrant as is provided by law.
Upon receipt of payment of the total amount the magistrate
court clerk shall issue to the drawer a receipt sufficiently
describing the check, draft or order with which receipt the drawer
is entitled to receive the dishonored check, draft or order from
the magistrate court holding it. The magistrate court clerk shall forward the amount of the check, draft or order, together with any
service charge reflected on the complaint as having been imposed on
the payee or holder by the payee's or holder's bank or financial
institution in connection with the check, draft or order, to the
payee or holder thereof, along with a description of the check,
draft or order sufficient to enable the person filing the complaint
to identify it and the transaction involved. Costs collected shall
be dealt with as is provided by law for other criminal proceedings.
The drawer of a check, draft or order against whom a warrant
has been issued may at any time prior to trial pay to the court the
amount of the check, draft or order; any service charge reflected
in the complaint as having been imposed on the payee or holder by
the payee's or holder's bank or financial institution in connection
with the check, draft or order; and the court costs which would be
assessed if the person were found guilty of the offense charged.
These costs shall be imposed in accordance with the provisions of
section two, article three, chapter fifty of this code.
NOTE: The purpose of this bill is to increase the magistrate
fee on bad check notices of complaint from $10 to $15.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.