HB 2741 Text

ENROLLED
COMMITTEE SUBSTITUTE
FOR
H. B. 2741
(By Delegates Webster, Ellem, Stemple,
Mahan and Proudfoot)
[Passed March 7, 2007; in effect ninety days from passage.]

AN ACT to amend and reenact §61-3-39a, §61-3-39b , §61-3-39f and §61-3-39h of the Code of West Virginia, 1931, as amended, all relating to worthless checks; providing a defense for payment of worthless check within ten days; authorizing magistrate courts to accept certain criminal complaints from private citizens; preventing assessment of costs against a complainant in certain circumstances; requiring the defendant in a worthless check prosecution to pay court costs for each worthless check charge of which he or she stands convicted; and requiring the defendant to pay the additional court costs for each worthless check charge dismissed as a result of a plea agreement.

Be it enacted by the Legislature of West Virginia:
That §61-3-39a, §61-3-39b, §61-3-39f and §61-3-39h of the Code of West Virginia, 1931, as amended, be amended and reenacted, all to read as follows:
ARTICLE 3. CRIMES AGAINST PROPERTY.

§61-3-39a. Making, issuing, etc., worthless checks on a preexisting debt; penalty.

(a) It is unlawful for any person, firm or corporation to make, draw, issue, utter or deliver any check, draft or order for the payment of money or its equivalent on a preexisting debt upon any bank or other depository, knowing or having reason to know there is not sufficient funds on deposit in or credit with the bank or other depository with which to pay the check, draft or order upon presentation. The making, drawing, issuing, uttering or delivering of any check, draft or order on a preexisting debt, for or on behalf of any corporation, or its name, by any officer or agent of the corporation, shall subject the officer or agent to the penalty of this section to the same extent as though the check, draft or order was his or her own personal act.
(b) This section shall not apply to any check, draft or order when the payee or holder knows or has been expressly notified prior to the acceptance of same or has reason to believe that the drawer did not have on deposit or to his or her credit with the drawee sufficient funds to insure payment as aforesaid, nor shall this section apply to any postdated check, draft or order. This section shall not apply when the insufficiency of funds or credit is caused by any adjustment to the drawer's account by the bank or other depository without notice to the drawer or is caused by the dishonoring of any check, draft or order deposited in the account unless there is knowledge or reason to believe that the check, draft or order would be dishonored.
(c) Any person violating the provisions of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than two hundred dollars; and upon a third or subsequent conviction thereof, shall be fined not more than two hundred dollars, or confined in the county or regional jail not more than ten days, or both.
§61-3-39b. Payment as defense.
Payment of a dishonored check, draft or order, made to the magistrate clerk within ten days after the notice mailed to the defendant pursuant to section thirty-nine-g of this article, constitutes a complete defense or ground for dismissal of charges brought under section thirty-nine or section thirty-nine-a of this article. §61-3-39f. Manner of filing complaint for warrant; form.
(A) Notwithstanding the provisions of section one, article one, chapter sixty-two of this code, a complaint for warrant for violations of section thirty-nine or section thirty-nine-a of this article need not be made upon oath before a magistrate but may be made upon oath before any magistrate court clerk or other court officer authorized to administer oaths or before a notary public in any county of the state and may be delivered by mail or otherwise to the magistrate court of the county wherein venue lies: Provided, That nothing in this section changes the authority and responsibility of the prosecuting attorney to prosecute any person or persons for violations of section thirty-nine or section thirty- nine-a of this article.
(B) A complaint for warrant for violations of section thirty-nine-a of this article shall be deemed sufficient if it is in form substantially as follows:
"State of West Virginia
County of ....................., to wit:
......................................, upon oath complains that:
(a) Within one year past, on the ...... day of ............, 20...., in the county stated above, ............................. ("the maker") unlawfully issued and delivered to ........................... a check, draft or order with the following words and figures:
........................ 20 .... No...........
..............................................
(Name of Bank)
Pay to the Order of ..................... $.......... Dollars
For......................................................... when the maker did not have funds on deposit in or credit with this bank with which to pay the check, draft or order upon presentation against the peace and dignity of the State of West Virginia. The complainant therefore prays a warrant issue and that the maker be apprehended and held to answer the warrant and dealt with in relation thereto according to the law.
(b) At the time the check, draft or order was delivered and before it was accepted there was either on the check or on a record in the possession of the complainant the following information regarding the identity of the maker:
(1) Name....................................................
(2) Residence address.......................................
(3) Business address........................................
(4) Mailing address.........................................
(5) Motor vehicle operator's number.........................
(6) Home phone..............................................
(7) Work phone..............................................
(8) Place of employment.....................................
That since the time the check, draft or order was delivered the complainant has ascertained to the best of his or her knowledge and belief the following facts concerning the maker:
Full name .......................................................
Home address ....................................................
Home phone no............... Business phone no...................
Place of employment .............................................
Race ............ Sex .............. Height .....................
Date of birth ...................................................
Day

Month
Year

..................................., Complainant
.................................................
Address

Phone No.

(c) The complainant's bank or financial institution has imposed on or collected from the complainant a service charge in the amount of $........................ in connection with the check, draft or order described above.
Taken, subscribed and sworn to before me, this .............. day of ......................, 20.....
.............................................
.............................................
(Title)
My commission expires the ........ day of .................., 20....."
(C) The failure to supply information indicated in parts (b) or (c) of the foregoing complaint for warrant shall not affect the sufficiency of the complaint.

§61-3-39h. Payment of costs in worthless check cases; disposition of certain costs.

(a) In any prosecution under section thirty-nine or thirty- nine-a of this article, the costs that may otherwise be imposed against the drawer of any check, draft or order shall be imposed on the person initiating the prosecution if:
(1) Payment of the check, draft or order is accepted by the payee or holder thereof after the filing of a complaint for warrant and the charge is subsequently withdrawn or dismissed at the request of the complainant: Provided, That the provisions of this subdivision do not apply where a charge is dismissed and restitution is paid as a condition of a plea agreement. The defendant shall be assessed costs for the prosecution of each charge of which he or she stands convicted and the fee for court costs assessed pursuant to section thirty-nine-g of this article for each charge dismissed as a result of the plea agreement;
(2) The payee or holder had reason to believe that the check, draft or order would be dishonored;
(3) The check, draft or order was postdated; or
(4) The matter is dismissed for failure to prosecute.
(b) Costs collected by magistrate court for issuance of notice as authorized by section thirty-nine-g of this article may not be paid into the special county fund created by the provisions of section four, article three, chapter fifty of this code but shall be accounted for separately and retained by the county in a fund designated the Worthless Check Fund until the sheriff issues warrants in furtherance of the allowable expenses specifically provided for by this section. Such costs may not be included in any calculation of the amount of funds to be retained by the county under the provisions of section four, article three, chapter fifty of this code.
(c) A county may, after agreement with the court administrator's office of the Supreme Court of Appeals, appropriate and spend from the Worthless Check Fund herein established such sums as are necessary to pay or defray the expenses of providing a deputy sheriff to serve warrants for worthless check offenses and to pay or defray the expenses of providing additional deputy clerks in the office of the magistrate court clerk. After payment of these expenses, or after a determination that these services are not necessary, a county may appropriate and spend from the fund the sums necessary to defray:
(1) The expenses of providing bailiff and service of process services by the sheriff;
(2) The cost of acquiring or renting magistrate court offices and providing utilities and telephones and telephone service to such offices;
(3) The cost of complying with section thirty-nine-i of this article; and
(4) The expenses of other services are provided to magistrate courts by the county.

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