1. Present the check for payment. It is important that the bank stamps the check to indicate the reason the check was not honored.
2. Send by certified mail, return receipt requested, a letter informing the person who passed the check that the check was dishonored either due to uncollected funds or insufficient funds only. The letter should be written following this format:
You are hereby notified that check number [#] issued by you to [ recipient of check ] on ( date ) drawn upon ( bank name ) has been dishonored. Pursuant to Florida law, you have seven (7) days from the receipt of this notice to tender payment of the full amount of the check plus a service charge of ($20 or 5% whichever is greater). The total due is $–.–
Unless this amount is paid in full within seven days from your receipt of this letter, I will turn over the dishonored check and all other available information to the State Attorney for criminal prosecution. You may be additionally liable in a civil action for triple the amount of the check, but in no case less than $50 plus the amount of the check, a service charge, court costs, reasonable attorney fees, and incurred bank fees, as provided in Sec. 68.065.
( name )
3. After the seven (7) day period has elapsed, criminal prosecution may begin if payment has not been received.
4. You must go to your local law enforcement agency office and sign a sworn affidavit initiating prosecution. You must bring with you the following paperwork, as all three are required for prosecution:
A. The worthless check stamped by the bank to indicate the reason the check was dishonored. B. A completed and notarized Criminal Complaint for Worthless Check form. These forms can be obtained from any law enforcement agency. C. A copy of the letter you sent to the checkwriter by certified mail and the return receipt.
WHEN THE STATE ATTORNEY’S OFFICE CANNOT PROSECUTE
1. When the check was postdated by the writer.
2. When the person accepting the check was asked by the maker to hold the check for some period of time.
3. When the person who accepted the check was informed or had reason to believe that the check was not good when given.
4. When there are insufficient signatures on the check. For evidentiary reasons, the State Attorney often cannot prosecute stop payment checks or third-party checks.
IF RESTITUTION IS OFFERED
1. Accept the full amount of money due and provide a receipt.
2. Accepting partial payment does not preclude prosecution.
3. DO NOT agree to drop the prosecution.
4. DO NOT agree to return the worthless check to the maker since it may be needed as evidence in court.
In certain instances, you may want to proceed civilly to collect funds after receiving a worthless check. Section 68.065, Florida Statutes, provides as follows:
1. In a civil action to collect a worthless check when the check remains unpaid 30 days after giving notice to the maker, the maker shall be liable, in addition to the amount of the check, for damages of triple the amount so owing or a minimum of $50, together with court costs and reasonable attorney fees.
2. In addition to the foregoing, you may assess a service charge upon the dishonored check of up to $20 or 5% of the face amount, whichever is greater.
NOTE: In such instances, whereby you elect to proceed civilly, please note that the State Attorney cannot handle this and you,must retain private counsel to represent you.
Even though Florida law does not permit prosecution on certain checks listed in this brochure, Florida law does allow the State Attorney’s Office to make every effort to collect the victim’s money.
Chapter 832, Florida Statutes, authorizes the State Attorney to implement a worthless check diversion program into which persons accused of violating laws relating to the issuance of worthless checks and drafts may be placed as an alternative to prosecution:
1. Upon receipt of a complaint, the State Attorney shall determine if the case is appropriate for diversion.
2. In those cases in which diversion is deemed appropriate, the defendant shall be notified of such.
3. Participation in the diversion program shall require the defendant to make full restitution to the victim, including service charges, and the payment of service charges to the State Attorney.
4. Service charges payable to the State Attorney are assessed according to the face amount of the worthless check as follows:
A. $20 when the face amount is less than $50
B. $30 when the face amount is between $50.51 and $300
C. $40 when the face amount is more than$300
NOTE: Participation in the diversion program, including full payment of restitution and service charges to the victim, does not eliminate the possibility of the filing of formal criminal charges, should the diversion contract not be fully met.