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If, for some reason, a case of a worthless check cannot be prosecuted by the State Attorney's Office, you may wish to pursue the matter in a Small Claims Court suit for breach of contract. You may wish to consult a private attorney before pursuing such a matter, as there are filing fees involved that you will have to pay to the clerk of court. However, the court may award treble damages, meaning three times the amount of the check to you after a trial; this is not an option available to the court in criminal prosecution.
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Under Florida law, any check returned from a bank stamped with any of the following is a worthless check:
Issuers of worthless checks may be subject to prosecution under Florida's criminal statutes. Checks returned "Refer to Maker" or "Uncollected Funds" may require additional investigation before being charged criminally.
Checks stamped "Stop Payment" may, in certain circumstances, be the subject of criminal charges, but you should be aware that stop-payment orders are not generally criminal and may have to be resolved in a Small Claims Court civil suit.
Checks returned with the stamp "Unauthorized Drawer's Signature" are generally not suitable for prosecution as worthless checks because they are probably forgeries committed by someone other than the owner of the checking account. Forgery does not fall under the Worthless Check Recovery Program and must be filed with the law enforcement agency in the jurisdiction where the check was uttered or forged.
Florida law specifies that you should ask for certain information about the check writer. Generally, most of this information is already printed on the check. You or your employee should ask the writer if that information is correct and current. If there are differences between the information on the check and any ID that you asked for, you should ask for an explanation before you accept the check.
You may also record this information on a check-cashing-card application that you keep on file, giving your customers a check-cashing card with a specific number that you or your employees will write on the checks instead of all the information listed below. It would still be a good idea, however, to ask for a picture ID even with the check-cashing card; this will cut down on the possibility of taking a forged or stolen check.
The following information about the check writer may be pre-printed or written on the check:
Send the required 15-day statutory notice letter to the person who gave you the worthless check. This gives the person passing the bad check adequate time from the receipt of your letter and notice to pay you the face amount of the check, plus a service charge. Service charges should not exceed certain amounts depending on the value of the check.
Depending on what is greater, the service fee can also be an amount equal to 5 percent on the face value of the check.
If the check is returned "No account" or "Account closed," you do not need to send a statutory notice letter. It is, however, recommended that you file the procedure in either case. You have the original check(s) or bank copy of the original check and the original certified/registered mail receipt (green card) from the notice, or the returned unopened envelope containing the notice.
Once you have either received the return receipt or the unclaimed letter and have waited the required 15 days from the date the letter was mailed, criminal prosecution may begin. You should have the names of witnesses who know something about the check included on an affidavit; the complaint affidavit fully completed and notarized; and contracts, receipts or other supporting documents. Do not delay filing your complaint after the 15 days have passed or the certified letter has been returned.
Promises made by the maker are, for the most part, of no more value than the check itself. Do make sure that the check is stamped by the bank indicating the reason it was dishonored. Without the stamp, prosecution is not possible.
Worthless checks are either first-degree misdemeanors or third-degree felonies under Florida law. A first-degree misdemeanor can mean up to one year in a county jail and a $1,000 fine, while a third-degree felony can mean up to five years in state prison and a $5,000 fine. Sentences may also include:
Most first offenders are allowed the take advantage of the Worthless Check Recovery Program through the State Attorney's Office. For more information or if you have questions, contact the State Attorney's Office at 305-292-3400 and ask for the Worthless Check Division.