It’s not a crime to bounce a check, accidents do happen. Criminal defense attorney John Guidry has seen all types and sizes of worthless check charges, and they can be charged as either a misdemeanor or a felony –– depending upon the circumstances. For example, if the check writer receives goods or services in exchange for the bad check, it’s a felony. However, if no goods or services were received and the bad check was written for less than $150, it is only a misdemeanor charge.
Knowledge of Lack of Funds
A key issue that makes a bounced check a crime is knowledge. There must be knowledge that there are no funds in the check writer’s bank account to cover the check. Another catch here is that it is not a crime if the person accepting the check is aware of the fact that there is not enough money in the bank to cover the check–in other words–it’s not a crime to write a bad check if you tell the recipient “Please don’t cash this check until next Thursday”. Under the same reasoning, postdated checks are not criminal.
“Obtaining Property” by Worthless Check
On a felony charge of Obtaining Property by Worthless Check, the law requires that the bad check must be used to obtain services or property. In one case, a general contractor hired a painter to work a week. At the end of the work week, the contractor gave the painter a worthless check. The felony charges were reduced to misdemeanors because a felony Obtaining Property by Worthless Check can only be sustained when the bad check was the inducement for the goods or services. In our example, because the painter did his work before receiving the bad check, it was not a felony. The same is true of a bad check written to pay off a debt. This is a difficult felony to prove, because the pre–existing debt involves goods or services already obtained at sometime in the past.
Defenses to Worthless Check Charges
There are many ways to fight a felony charge for Obtaining Property by Worthless Check. Criminal defense attorney John Guidry has defended numerous cases with just as many different defenses. In other example, a prosecutor presented a handwriting expert to testify that the defendant wrote a $400+ bad check at Sears. At trial, the clerk at Sears never testified, thus there was never any evidence that the accused received merchandise in exchange for the check. In this case, the court struck down the felony charge, only allowing a misdemeanor. The state adequately proved a bad check was passed (via the handwriting expert), but failed to prove goods were received in exchange (only the clerk at Sears could testify to that). As stated above, there must be evidence that the accused receives something (anything) of value in exchange for the check.
As you may expect, it’s also difficult for the State to prove that the signatures on the checks match that of the accused. To prove a signature, one of two things must happen. First, the State may present a witness that is familiar with the defendant’s signature. Or, the State may present the expert testimony of a handwriting analyst to show that the signature on the check matches the handwriting of the defendant. In the case of Donna Jo Redmond vs. State of Florida (731 So.2d 77 (1999)), Ms. Redmond was accused of uttering a forged instrument by entering a check cashing store and requesting that they cash the check for her. The clerk knew the check was stolen, but still had Ms. Redmond sign the check and made a copy of Ms. Redmond’s state issued ID card. The appeals court overturned Ms. Redmond’s conviction, stating that the case was not proven because no evidence was ever presented matching Ms. Redmond’s signature on the check to the defendant in the courtroom at trial. The court noted that, had the State presented a handwriting expert or a person familiar with the Defendant’s signature, the case could have been proven. Yet, without such evidence, the case must be thrown out.
Identity is a tough burden for the state to overcome in worthless check cases. Often times, a citizen is arrested merely because their name appears on a check that was fraudulently cashed. But, it can be extremely difficult to prove that the person arrested is the same person that cashed the check (absent thumbprints, of course). After all, there couldn’t be several individuals with that name! For a more detailed discussion of how difficult it can be to prove identity–even though the names may “match”–take a look at my article entitled “It Wasn’t Me“.
How hard is it to prove a worthless check charge? Expert witnesses may be required to testify in worthless check cases, due to the fact that many bank tellers will have no independent recollection of the identity of the person who cashed the check. In one recent case, a defendant cashed a few worthless checks at a SunTrust bank. Proctor v. State, 97 So.3d 313 (Fla. 5th DCA 2012). The bank tellers couldn’t identify the defendant in court, but the entire transaction was captured on the bank’s video security system. At trial, the police officer testified that the person on the bank video is the same person that he arrested. Furthermore, the bank tellers were unfamiliar with the signature on the worthless checks, but the officer also testified to the fact that the signature on the check matched the defendant’s signature on his driver’s license. The appeals court overturned the conviction, finding that the prosecution should have hired two separate expert witnesses: (1) a handwriting expert regarding the signatures on the check matching the defendant’s signature, and (2) an eyewitness identification expert regarding the defendant being the same person captured on the bank video. All of the details are laid out in my article “A Cop’s Opinion Gets a Case Overturned“.
As you can see, worthless check charges are not simple. There are plenty of defenses to such accusations, and many hoops that our government must jump thru to prove their case. When you hire criminal defense attorney John Guidry to handle these serious felony accusations, know that he will leave no stone unturned. The good news is that Mr. Guidry is just a phone call away, and the call is free, so no monetary loss, only knowledge gain.