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PROSECUTING FRAUDULENT CHECK WARRANTS

THE LAW

Section 34-11-60 of the S.C. Code of Laws makes it unlawful to write or utter a fraudulent check. to summarize, it is unlawful for a person, with intent to defraud, to make or deliver a check for value, when (s)he knows that there are insufficient funds in the bank. Value can be money, services, credit, payment for rent, or certain other reoccurring liabilities or taxes. Credit means the securing of further advances for money, goods or services, when a check is given in whole or part payment of a then existing account.

The following checks cannot be criminally prosecuted:

1. Those given in full or partial payment of a preexisting debt unless you can prove an intent to defraud.

2. Those where the payee knows or has reason to know that the check is not good. This includes post-dated checks and situations where the payee is instructed to hold the check to a later date.

3. Those checks not deposited into an account of the payee within 10 days after their receipt.

4. Two party checks unless an intent to defraud can be proven.

5. Checks more than 180 days old.

ESTABLISHING A PRIMA FACIE CASE

Sections 34-11-60 & 70 of the S.C. Code of Laws set forth what evidence is needed to establish a prima facie case (such as will suffice until contradicted and overcome by other evidence), as well as create a presumption that the prosecution was instituted for reasonable and probable cause. When this is done, the person instituting prosecution is immune from civil liability for the giving of the notice.

The following requirements must be met in order to establish a prima facie case:

1. The defendant gets something of value at the time the check is presented unless an intent to defraud can otherwise be proven.

2. The defendant signs the check in the presence of the payee or its designated employee, and the receiver immediately initials the check.

3. The check bears the full name, residence address and home number or a check identification card number is recorded on the check. Although not required by statute, it is recommended that you confirm this information verbally by having the person present a picture I.D. Look at the picture on the I.D. and the person presenting the check. If it's not the same person, don't accept the check. It may be helpful in court to record on the check the South Carolina driver's license number or I.D. number as well as the expiration date. You need to copy this information yourself. Don't rely on the person presenting the check to verbally tell you the D.L. or I.D. number and don't rely on any number already printed on the check itself.

4. The check must be deposited into an account of the payee within 10 days of its receipt.

5. The bank must stamp or otherwise record on the check the reason for its dishonor.

6. Upon return of the check from the bank, send a notice to the maker of the check by certified mail. The law does not require that you incur the extra expense of requiring the recipient to sign for the certified mail. If you are going to redeposit the check, wait until you verify its subsequent dishonor before sending the notice.

7. The notice must be substantially as follows:
   "You are notified that a check or instrument, numbered ______, issued by you on __(date)__, drawn upon __(name of bank)__, and payable to __(name of payee)__, has been dishonored. Pursuant to South Carolina law, you have ten days from the date this notice was mailed to tender payment of the full amount of the check or instrument plus a service charge of thirty dollars, the total amount due being ______ dollars and _______ cents. Unless this amount is paid in full within the specified time above, the holder of the check or instrument may turn over the dishonored check or instrument and all other available information relating to this incident to the solicitor or other appropriate officer for criminal prosecution."

8. Wait 10 full days from the date the notice was mailed.

9. If you have not been paid the full amount of the check along with the $30 service charge, and you wish to sign an arrest warrant, proceed to the nearest magistrate in the county in which the check was written. You should bring the check, the certified mail receipt, and a copy of the notice for the magistrate to review. You will probably be required to execute an Application for Fraudulent Check Warrant form. If you have a number of fraudulent check cases to prosecute, it might expedite matters to print this form yourself and have it completed before you go to see the appropriate magistrate.

AFTER YOU SIGN THE WARRANT

The warrant will be forwarded to the sheriff's office. If found, the defendant will be arrested and taken to jail. Shortly thereafter, a magistrate will set the defendants bond and a court date will be set. In most, but not all cases, the defendant will be released on a reasonable bond prior to his court appearance. If, during this time, the defendant attempts to pay for the check and the service charge, or any portion thereof, accept the money. Taking a partial payment will not prejudice your position in the prosecution of your case. Do not give the original check back to the defendant, however, unless you are satisfied that there has already been a disposition make on the warrant. If you give the check back to the defendant, it will not be available for you to present in court as evidence. The court will not be collecting restitution for you. It does, however, require that defendants furnish proof, by way of receipt, that restitution has been paid to you. Please assist us by stamping, printing, or otherwise recording some official documentation of your identity on the receipt. If a partial payment is made, indicate clearly on the receipt that additional funds are due. Once there is a disposition of the warrant, the defendant is entitled to the return of his check. A clear indication that a case has ended is the defendant's possession of a receipt from the magistrate court indicating payment of court costs or a fine. The court can verify that a case is ended by telephone.

In most instances, the prosecution will not be notified to make a court appearance unless the defendant fails to appear in court or pleads not guilty. Thousands of fraudulent check cases are processed in the magistrate courts of this county each your with relatively few court appearances required on the part of prosecutors. Every one convicted either serves time in jail or is required to pay restitution. Many thousands of dollars are paid each year in the form of restitution as a results of our efforts. All we request from you is a little cooperation in order to make the criminal justice system function properly. We ask that you not request that a warrant be dismissed unless you discover that the warrant was issued in error, that the check was a forgery, or for some other good cause. We also ask that you try to make an appearance when we notify you of a court date.

Do not sign an arrest warrant if you get reliable information that the check was stolen or forged. Two party checks are hard to prosecute because of the difficulty in proving an intent to defraud. If you attempt to prosecute a two party check case and lose, you will likely be sued later.

PENALTIES

If the check is for $1000 or less, the case is triable in the magistrate court. The court has the discretion to dismiss a fraudulent check warrant upon satisfactory proof of restitution and may charge up to $41 in court costs from the defendant for each warrant dismissed. The penalty for first offense uttering a fraudulent check for $500 or less is a fine of not less than $50 nor more than $200 or by imprisonment for not more than 30 days. The maximum penalty for first offense uttering a fraudulent check for more than $500, but not greater than $1000 is a fine of not less than $300 nor more than $500 or by imprisonment for not more than 30 days. Additionally, the court may add court costs of $41 to any fine.

If the check is for more than $1000, the case is triable in the circuit court. The maximum penalty for a first offense is 2 years and/or a $1000 fine. Subsequent convictions carry a maximum penalty of 10 years and/or a $2000 fine. Defendants charged with uttering fraudulent checks in this State for more than $1000 can, in the discretion of the solicitor, be arrested in other States and extradited back to South Carolina. Persons charged with uttering checks for $1000 or less can only be arrested in South Carolina.

STOP PAYMENT CHECKS

If payment is stopped, with the intent to defraud, and the goods or services given for the check were as warranted, then an arrest warrant can be issued under section 34-11-80 of the S.C. Code of Laws. The same procedures and penalties apply.