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Introduced Version House Bill 2775 History

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H. B. 2775

 

         (By Delegates Williams, Hartman, Butcher and Michael)

         [Introduced January 11, 2012

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; referred to the

         Committee on the Judiciary then Finance.]

 

 

 

 

A BILL to amend and reenact §61-3-39a, §61-3-39g and §61-3-39m of the Code of West Virginia, 1931, as amended, all relating to writing worthless checks; changing the criminal penalty; providing a procedure for issuing a summons when the drawer is an out-of-state resident; and allowing the prosecuting attorney to drop charges under certain circumstances.

Be it enacted by the Legislature of West Virginia:

    That §61-3-39a, §61-3-39g and §61-3-39m 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 does 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 does this section apply to any postdated check, draft or order. This section shall does 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: (1) Fined not more than $200; 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 (2) sentenced to between one and ten days in jail, with at least twenty-four hours of the sentence being actual incarceration in jail; (3) required to perform fourteen days of community service; or (4) any combination of these penalties.

§61-3-39g. Complaint; notice of complaint; issuance of warrant or summons; 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 or summons 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 $25. 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.

    Where the drawer is an in-state resident, 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 .............., 20....., you did unlawfully issue and deliver unto him or her 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 ..................., 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 $25 on or before the ........ day of ..............., 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: .............................."

    Where the drawer is an out-of-state resident the notice shall be in form substantially as follows:

    "You are hereby notified that a summons 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 ..............., 20....., you did unlawfully issue and deliver unto him or her 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 summons 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 summons for arrest will be issued on or after the ......... day of ..................., 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 $25 on or before the ........ day of .............., 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, for in-state residents, proceed with the issuance of the warrant, or for out-of-state residents proceed with the issuance of a summons, as is provided by law.

    If the drawer of the check, draft or order fails to respond or appear to summons or warrant issued by the court within sixty days, the clerk of the magistrate court shall forward the drawer's name and address, as presented in the check, draft or warrant, to the Commissioner of the Division of Motor Vehicles. The commissioner shall suspend the drawers driving privilege in West Virginia. The suspension shall remain in effect until the drawer appears and satisfies the court assessed penalties and restitution.

    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.

§61-3-39m. Creation and operation of a program for worthless check offenders; acceptance of person in program.

    (a) A prosecuting attorney may create within his or her office a worthless check restitution program for persons who have violated sections thirty-nine or thirty-nine-a of this article. This program may be conducted by the prosecuting attorney in conjunction with a law-enforcement agency or by a private entity under contract with the prosecuting attorney.

    (b) The prosecuting attorney may adopt standards to determine the appropriateness of an individual case for the program. In developing these standards, the prosecuting attorney should consider the following factors:

    (1) The amount of the check, draft or order made, drawn, issued, uttered or delivered;

    (2) The person’s criminal record;

    (3) The number of times the person has participated in the program; and

    (4) The number of warrants or cases pending against the person for violations of sections thirty-nine or thirty-nine-a of this article.

    (c) Except as provided in section thirty-nine-o of this article, nothing in this section shall preclude the prosecuting attorney from prosecuting violations of sections thirty-nine or thirty-nine-a of this article.

    (d) Nothing in this section may be construed or interpreted to mandate funding for any worthless check restitution program created in a prosecuting attorney’s office or to require any appropriation by the Legislature.

    (e) Notwithstanding any other provision of law to the contrary, no case is appropriate for referral to the program unless notice has been provided pursuant to section thirty-nine-e or thirty-nine-g of this article.

    (f) The prosecuting attorney, after full and complete payment of all restitution amounts due by a drawer of multiple worthless checks may dismiss all but one charge against the drawer and allow him or her to plead to a single charge of issuing a worthless check, draft or warrant. In such an instance, the drawer is subject to court costs and fees in that case only.  The drawer shall also be sentenced to ten days in jail. That sentence shall be suspended and the drawer shall be placed upon twelve months of unsupervised probation with the condition that he or she make full payment of all costs and fees within a specified time and that he or she write no additional worthless checks.



 

    NOTE: The purpose of this bill is to provide improvements to the statutory provisions relating to the writing of worthless checks. The bill would alter the criminal penalty for writing a worthless check; provide a procedure for issuing a summons when the drawer is an out-of-state resident; and allow the prosecuting attorney to drop some charges when restitution has been made.


    Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.

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