What is a Worthless Check?
Under Florida law, any check returned from a bank stamped "NSF" (Non-Sufficient Funds), "Insufficient Funds," "No Such Account," "Account Not Found," or "NSF Unless Otherwise Indicated" is a worthless check that 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 be used as a means of dealing with contractual disputes. Checks returned for Stop Payment may, in the majority of cases, 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. These cases should be referred to either the local Police Department or Sheriff's Department for investigation.
What Should I Do When I Receive a Worthless Check?
You should send the writer of the check a notice, by certified or registered mail with a return receipt requested or by First Class U.S. Mail with an Affidavit of Service, giving them fifteen (15) days from the receipt of your letter in order to pay you the face amount of the check, plus a service charge of $25.00 (if the check does not exceed $50.00), $30.00 (if the check is greater than $50.00, but does not exceed $300.00), $40.00 (if the check is greater than $300.00), or 5% of the amount of the check, whichever is greater.
The State Attorney's Office, Worthless Check Division, has fill-in-the-blank copies of the fifteen-day notice which are available for the asking or which may be downloaded from this site; call us at (850) 606-6000 for instructions.
Once you have either received the return receipt or the unclaimed letter and have waited the required fifteen days from the date the check writer would have received the letter, bring it, the original check (or a certified front and back copy from your bank), and any other relevant information (copy of a contract, lease, work order, or invoice; statements made to you either orally or in writing by the check writer regarding the check; names of witnesses who know something about the check, etc.) to the State Attorney's Office. We will assist you in filling out a Sworn Complaint against the check writer or we will tell you if the case will need further investigation or if it is unsuitable for prosecution.
Do I Have to Accept a Check?
You are never under any obligation to accept a check from someone for payment of goods or services, while checks are certainly a convenience, you may opt to ask for cash or certified checks or money orders.
If you decide to accept checks, please follow these guidelines:
- Do not accept checks that are post-dated (checks dated for future or indeterminate date like February 31, or 2/_/2007, or checks with no date on them at all) unless you are willing to take a chance, since post-dated checks cannot be prosecuted by the State Attorney's Office if they are dishonored. You may sue on a post-dated check that is dishonored in a Small Claims Court suit.
- Do not agree to hold a check, even for a few hours. Accepting a check and agreeing to hold it for a period of time puts you on notice that the funds are not available when the check is being given to you, and such checks cannot be prosecuted by the State Attorney's Office. Again, such a check may be sued upon in a Small Claims Court suit.
- Do not accept third-party checks, since the person who wrote the check is not the person giving it to you, and you may be accepting a forged or stolen check.
- You should ask for some type of picture identification, either a driver's license or ID card issued by a governmental agency. Be wary of "ID cards" that can be obtained through mail or at flea markets. Examine the ID carefully to make sure that it has not been altered in any way and to make sure that the person presenting the check is the person on the ID.
- Check the signature on the ID against the signature on the check; do they look similar?
- If the check presented to you is a company check or a temporary check (no name or address is printed in the upper-left hand corner of the check), then get the person to PRINT their name under the signature line.
What Information Should Be Taken on the Check?
Florida law specifies that you should ask for the following information about the check writer and write this information on the check itself:
- Name
- Home address
- Home telephone number
- Date of birth
- Race
- Height
- Place of employment
- Employer's telephone number
This information may be written on the front of the check or in a limited area on the back of the check where endorsements may be placed. If some of this information is already printed on the check, then you or your employer should ask the check writer if that information is correct and current. If there are differences between 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 checks instead of all the information listed above. 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.
May I Ask to See a Credit Card?
You may ask to see a credit card as an indication of credit worthiness on the part of the check writer, but you may not write down their credit card number or expiration date, only the type of card and the check writer's name.
This does not prohibit you from requesting a credit card number and expiration date in lieu of a deposit to secure payment in the event of default, loss, damage, or similar occurrence.
What is the Worthless Check Diversion Program?
The Diversion Program was created by the Legislature of the State of Florida in 1986 and allowed State Attorney Office's to create an educational program for first-time worthless check offenders in order to give them an alternative to prosecution. In order to participate in the Diversion Program, defendants must first provide proof that they have paid restitution of their check or checks to their victim; then they must pay a fee to the State Attorney's Office of $25.00, $30.00, or $40.00, depending upon the face amount of the check. Only after paying restitution and the fee to the State Attorney's Office may a defendant participate in the Diversion Program.
If a check writer qualifies for participation in the Diversion Program, a letter is sent to them by the State Attorney's Office giving them fifteen days to make restitution to the victim and to bring proof of restitution and the Diversion Program fees to the Worthless Check Division office. When check writers come to the Worthless Check Division office, they will watch a fifteen minute video and receive an eight-page handout, both of which describe Florida's laws regarding worthless checks and procedures to follow to prevent further passing of worthless checks.
Steps to Complete Check Diversion Program
Check Diversion Program Course Material
What Are the Penalties For Passing Worthless Checks?
Worthless checks (usually referred to by the acronym PWBC - Passing Worthless Bank Checks) are either 1st degree Misdemeanors or 3rd degree Felonies under Florida law. A 1st degree Misdemeanor can mean up to one year in a County Jail and a $1,000.00 fine, while a 3rd degree Felony can mean up to five years in a State Prison and a $5,000.00 fine. Most first offenders, if they haven't taken advantage of the Diversion Program, may receive a probationary sentence that may include financial counseling, payment of restitution, payment of Diversion Program fees to the State Attorney's Office, community service work, and court costs.
What if a Worthless Check Cannot Be Prosecuted?
If, for some reason, 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 the Court. However, treble damages (that is, three times the face amount of the check) may be awarded by the Court after a trial to you; this is not an option available to the Court in criminal prosecution.
We Are Here to Serve You!
Please do not hesitate to contact the Worthless Check Division of the State Attorney's Office for Leon County at (850)606-6000 if you have any questions. We will be more than happy to assist you in any way we can.
Worthless Check Forms
Instructions for Filing a Worthless Check
Worthless Check Form Letter example
Sworn Complaint for Worthless Check
Affidavit of First Class Mail Service
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