SOUTH FLORIDA LITIGATION LAWYERS
FLORIDA WORTHLESS CHECK STATUTE §832.05
Florida law (Fla. Stat. §832.05) makes it not only a civil offense to write a bad check, or issue a check that the remitter knows has no funds and will not clear, but also makes it a misdemeanor or felony in the State of Florida, depending on the face amount of the worthless check.
Definition of Worthless Check
Under Section 832.05(2)(a), Florida Statutes, it is a criminal offense for any person, firm, or corporation to obtain any services, goods, or other things of value by means of a check, draft, or other written order knowing at the time of the issuance of such check that there are insufficient funds on deposit to cover the transaction.
Although most prosecutions under the statute are directed at “bounced” or “bad” checks, the statute applies to a variety of orders to pay money and “commercial paper,” and to a variety of types of drawees and transactions. It even applies to debit cards.
In general, the term ‘check’ means a draft, other than a documentary draft, payable on demand and drawn on a bank or a cashier’s check or teller’s check. An instrument may be a check even though it is described by another term, such as ‘money order.’ Fla. Stat. § 673.1041(6).
Criminal Aspect of the Worthless Check:
Any person who issues what is coined a “worthless check” in Florida, may be prosecuted criminally under Chapter 832 of the Florida Statutes. A person is presumed to have the intent to defraud or knowledge of insufficient funds in the drawee bank unless he or she, or someone for him or her, have paid the holder of the worthless check the face amount of the check, together with a service charge not to exceed the service fees authorized under Section 832.08(5) of the Florida Statutes or an amount of up to 5 percent of the face amount of the check, whichever is greater, within 15 days (30 days for civil actions) after receiving written notice that such check has not been paid to the holder thereof, and bank fees incurred by the holder. Fla. Stat. § 832.07
This penalty does not apply to any check when the payee or holder knows or has been expressly notified prior to the drawing or uttering of the check, or
Civil Court is different. Once can sue for three times the amount of the check, called “treble damages”. See
Fla. Stat. §68.065 (for civil actions to collect worthless checks, drafts, or orders of payment) allows for recovery of treble damages, service charges, attorneys’ fees, and costs if its provisions are not followed. Before litigation is initiated, the form of notice set forth in Fla. Stat. §68.065 must be delivered by certified or registered mail, or by first-class mail, evidenced by an affidavit of service of mail, to the maker or drawer of the check, draft, or order of payment. If notice is properly provided, the maker or drawer will be liable to the payee for, in addition to the amount owing on the check, damages of triple the amount owing, a statutory service charge based on the check amount, reasonable attorneys’ fees, and court costs. If the notice is sent via certified mail and the recipient refuses to claim the notice or sign the postal receipt, the statutory notice requirement is satisfied.
The Required Notice
In order to file a civil action the remitter of the check must first be notified by certified mail or registered mail. The notice must contain certain language as follows:
“You are hereby notified that a check, numbered _____, in the face amount of $_____, issued by you on (date) , drawn upon (name of bank) , and payable to _____, has been dishonored. Pursuant to Florida law, you have 30 days from receipt of this notice to tender payment of the full amount of such check plus a service charge of $25, if the face value does not exceed $50, $30, if the face value exceeds $50 but does not exceed $300, $40, if the face value exceeds $300, or an amount of up to 5 percent of the face amount of the check, whichever is greater, the total amount due being $_____ and _____ cents. 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 the amount of the check, a service charge, court costs, reasonable attorney fees, and incurred bank fees, as provided in s. 68.065 and/or s. 832.07.”
Secondary persons receiving a check from the original payee or a successor endorsee have the same rights that the original payee has against the maker of the instrument, provided such subsequent persons give notice in a substantially similar form to that provided above. . Fla. Stat. § 832.07.
Prosecution for a Worthless Check
In any prosecution or action on a worthless check, payment of the check by the debtor does not constitute a defense or ground for dismissal of the charges. Fla. Stat. § 832.05(5). If the court determines that the failure to satisfy the dishonored check was due to economic hardship, however, the court has the discretion to waive all or part of the statutory damages.
In a criminal prosecution, the maker of the worthless check may be subject to a misdemeanor charge if the violation involves a misdemeanor and the check amount is less than $150.00, or a felony if the check is in excess of that amount. Fla. Stat. § 832.05(4)(c). Penalties may include up to 5 years in prison or a $1,000 fine for Felonies and up to $300 or six months in jail for Misdemeanors.
Please keep in mind there is a statute of limitations as well for processing a claim against the payor of a worthless check and bringing suit.
At the Law Offices of Jacqueline A. Salcines, P.A., we have extensive litigation experience and have been representing clients with bringing suits for worthless checks for over 18 years. Before you decide to write the letter yourself, contact us. We will get it right the first time and process your case in the most efficient manner possible.
We are here to help and protect your rights. Allow us to go to work for you! We offer free phone consultations, and a no cost review of your case.
Call us today. 305.669.5280 and see how we can help you.
About the Author:
Jacqueline A. Salcines, Esq is the Owner and Managing Partner of the Law Offices of Jacqueline A. Salcines, P.A. Real Estate and Business Law Group. With over 18 years experience including holding a dual degree in Accounting, her broad knowledge and experience in litigation including giving numerous pro bono seminars for Legal Aid and Put Something Back project, attorney Salcines serves to aggressively protect and defend our firm’s clients.
Call us today to set up a free consultation to discuss your specific needs. We are here for you!
Main office 305 | 669 | 5280. Or email the attorney directly: J.Salcines@Salcineslaw.com
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JACQUELINE A. SALCINES, ESQ.
706 S. DIXIE HIGHWAY
CORAL GABLES, FL 33146
TEL. 305 669 5280