You Can Be Held Criminally Liable for Writing Checks Without Sufficient Funds

Florida law exposes those who intentionally write “bad checks” — in other words, checks that are issued with the understanding that the account does not have sufficient funds to be cashed by said check — to potential criminal liability, with penalties that vary depending on the circumstances of the case.

The Bad Check statute, or section 832.05 of the Florida Statutes, bad checks and other fraudulent bank orders.  It applies not only to bad checks, but also to drafts, bills of exchange, debit card orders, and other bank orders that are made without sufficient funds to cover the particular transaction.

Though writing a bad check may on the surface seem like a rather minor crime — some may not even realize that it’s a crime at all — the reality is that the systemic issuance of bad checks and other orders backed by insufficient funds can create problems for effective banking practices, trade, and commerce.  Public policy therefore demands the imposition of criminal penalties to discourage such behavior.

If you’ve written a “bad check,” you could be held liable under Florida criminal law.  Let’s take a quick look at criminal liability for bad checks and other orders backed by insufficient funds.

Prerequisites for Criminal Liability

Section 832.05(2)(a) outlines the crime in more detail.  Pursuant to the statute, it is unlawful for any person, firm, or corporation to draw, make, utter, issue, or deliver to another any check, draft, or other written order on any bank or depository, or to use a debit card, for the payment of money or its equivalent, knowing at the time that the order is backed by insufficient funds.

As with other crimes, for the defendant to be found liable, there must be criminal intent.  Without criminal intent, there can be no criminal liability in the “bad check” context.

For example, suppose that you operate a small food service business and you are writing a check out to a supplier for some plastic cutlery in bulk.  Unfortunately, you have not paid close attention to the purchasing funds for the month — at the time of writing and delivering the check to the supplier, there were insufficient funds to complete the order.  If you did not know that the funds were insufficient at the time, then criminal intent simply cannot be established and criminal liability cannot thereby be imposed.

If the prosecution establishes criminal liability, then you could be subject to substantial penalties that include:

  • Up to a year in jail and a 1st degree misdemeanor (for a transaction worth less than $150);
  • Up to five years’ imprisonment and a 3rd degree felony (for a transaction worth more than $150).

Common Defenses

There are a number of defenses that you can assert to counter the criminal charge.  These include, but are not necessarily limited, to:

  • The payee (person who received the bad check) was notified or had reason to believe that the order was backed by insufficient funds.
  • The defendant was notified as to the bad check and, within 15 days of such notice, corrected the issue and paid in full.
  • The payee was significantly delayed in making the deposit.
  • The defendant mistakenly believed that there were protections in place to prevent any issue with regard to insufficient funds in the account (i.e., that there was bank credit that could be used to handle the discrepancy).

If you’ve been charged or are concerned about the possibility of being charged with a crime on the basis of having issued a “bad check” call (941) 900-3100 as soon as possible to speak with experienced Sarasota criminal defense attorneys at the Fowler Law Group today.

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