17. BAD CHECK PROSECUTIONS
17.1 BAD CHECK PROCEDURES (Debit Account Fraud OCGA 16-9-20)
17.11 Whether to issue Warrant or Citation[OCGA 16-9-20]-CHECKLIST
1. Check on out-of-state bank - Warrant issues - felony.
2. Check for $1,500.00 or more - Warrant issues - felony.
3. Check for less than $1,500 and on in-state bank - misdemeanor - citation or warrant may issue, at Court's option.
NOTE - The 1994 revisions to OCGA 16-9-20 added debit card sales receipts to checks, drafts, and orders for the payment of money. The offense is now "deposit account fraud" and "instrument" is used in the statute in place of the word "check." Where this chapter refers to "checks", it means "instrument" under the current usage and all of the above instruments are included. Debit cards pose unique problems with respect to criminal prosecutions which have not yet been addressed by the courts - see Purdom, Georgia Magistrate Court Handbook, 13-1.
17.12 Elements of Crime [OCGA 16-9-20] - CHECKLIST
1. Did defendant make, draw, utter, execute or deliver;
NOTE - " Delivery" (by employee of corporation of check signed by president) enough for statute. Employee's failure to respond to 10-day letter makes prima facie case [Blue Moon Cycle, Inc. v. Jenkins, 281 Ga. 863, 642 SE2d 637 (2007)]. In delivery case, however, Court may wish to conduct a hearing before any warrant, since employee who doesn't write check will likely have a defense based upon no intent to defraud.
2. An instrument (i.e., check, draft, debit card sales draft, or order for payment of money);
3. On a financial institution;
4. In exchange for:
a. present consideration;
NOTE - "Present consideration" may exist although goods or services are received before a check is delivered in payment, where the interval is slight and the transaction can be characterized as a single contemporaneous exchange. Bowers, 248 Ga. 714, 285 SE2d 702 (1982) (less than 24 hours); Singletary, 192 Ga.App. 653, 385 SE2d 791 (1989).
b. rent past or presently due;
c. state taxes;
d. child support past or presently due to child's custodian based on a court order or written agreement signed by the defendant);
e. wages [Hutto, 198 Ga.App. 325, 401 SE2d 339 (1991) (must be employee, not independent contractor)];
f. simultaneous extension of additional credit where additional credit was being denied;
g. written waiver of mechanic's/materialman's lien rights;
5. Knowing that it would not be honored by drawee (bank, etc.), because (after check deposited within 30 days of receipt)
a. The account was closed or there was no account at the time the instrument was made (drawn uttered, or delivered);
or
b. NSF check - Payment refused by drawee for lack of funds upon presentation of instrument within 30 days, provided:
$ Defendant did not pay holder for instrument plus service charge within 10 days after receiving written notice that payment was required;
$ Properly worded notice (See 17.14 for requirements) sent certified/registered mail, return receipt requested, to address printed on the instrument or given at time of issuance of the instrument;
$ Proof of receipt - If the "10-day letter" was returned "Unclaimed" or "Undelivered", holder may presume notice of properly addressed notice sent within 90 days of receipt of check;
or
c. Other special circ*mstances showing knowledge and intent (i.e., a and b above are not exclusive).
NOTE - a and b constitute prima facie evidence of knowledge which may, however, be rebutted by evidence of the defense. In other words, the NSF letter or absence of an account are methods of showing that defendant knew the check would be dishonored and
would normally establish probable cause justifying the issuance of a warrant or citation, but the ultimate issue for trial always remains whether it was shown beyond reasonable doubt that the defendant knowingly defrauded the victim rather than merely whether the prima facie case has been made.
A check marked " CLOSED ACCOUNT" does not establish the prima facie case without sending a demand letter. Such a notation does not show that the account was closed at the time the check was written nor does it show that the defendant had no other account with the bank rVoliton, 161 Ga.App. 813, 288 SE2d 924 (1982)]. Nor does a notation "UNABLE TO LOCATE" since again this does not establish that defendant has no account [Wilson, 190 Ga.App. 250, 378 SE2d 498, cert. den. 190 Ga.App. 899, 378 SE2d 498 (1989)] or " ACCOUNT IN PROCESS OF CLOSING" [Nicholl v. A&P, 238 Ga.App. 30, 517 SE2d 561 (1999)]. Since sending the letter gives a measure of immunity from civil lawsuit, the merchant is always better advised to send the letter [OCGA 16-920(h)]. The letter, however, offers protection only against the person who actually wrote the check; where the check was forged there is no immunity for prosecuting the named account holder where he or she did not actually write the check [Nicholl v. A&P].
6. Showing that defendant actually was the person who did the above:
a. Merchant obtained from customer giving check his/her full name, residence address and home phone number:
$ Through it being imprinted on check or
$ Recorded on the check by the accepting merchant or
$ Recording on the check the number of a check cashing card issued by the merchant, which card was issued after the said merchant having received the above information required above.
b. That the party receiving the check witnessed the signature or endorsem*nt of the party presenting the check and, to evidence same, initialed the check.
NOTE - 6.a. and b. establishes a prima facie method of creating a rebuttable presumption of identity of the person presenting the check.
c. Special circ*mstances may provide other methods of identity (i.e., writer personally known to merchant, etc.)
17.13 Requirements for NSF Letter (Civil Immunity) - CHECKLIST
For a letter to substantially comply with OCGA 16-9-20(a)(2), the letter should, at a minimum contain the following:
1. The check number;
2. The date of the check;
3. Name of payee;
4. The bank on which the check was drawn;
5. That the check was dishonored;
6. A warning of the possibility of criminal prosecution if the check is not paid within 10 days.
A notice letter which does not substantially comply with the statute provides no civil immunity for the holder of the check, even when the letter is returned undelivered [Tallman v. Hinton, 220 Ga.App. 23, 467 SE2d 596 (1996)]. On the other hand, a sufficient letter offers the protection of civil immunity even when it is not required to be sent [Grand Union v. Edwards, 217 Ga.App. 154, 456 SE2d 736 (1995)].
The statutory letter also demands payment of the "applicable service charge;" the maximum service charge allowed by statute is $30.00 or 5% of the face amount of the check, whichever is greater [OCGA 16-9-20(j)], plus any fees charged to the holder by a financial institution as a result of the dishonor.
17.14 Worthless Checks Which Are Not Criminal - CHECKLIST
1. Stop payment check [Hardeman, 154 Ga.App. 364, 268 SE2d 415 (1980)];
2. Post-dated check [Bivens, 153 Ga.App. 631, 266 SE2d 304 (1980); but see Galbreath, 193 Ga. App. 410, 416, 387 SE2d 915 (J. Benham, concurring, 1989) (where the defendant expressly represents that the funds are present when check is written, post-dated check does not bar prosecution)];
3. Two-party check (unless the endorser testifies to establish the criminal intent of the original writer of the check or the original writer testifies to establish that the endorser knew the check would not be good);
4. Loan or installment payment (unless resulted in additional credit or waiver of lien being given) [OCGA 16-9-20(f)(2)(D & E); Vasser v. Berry, 85 Ga.App. 435, 69 SE2d 701 (1952)];
5. Checks asked to be held before deposit or which customer indicated that it would only be good in future [Bivens, 153 Ga.App. 631, 266 SE2d 304 (1980)].
17.15 Felony or Misdemeanor - CHECKLIST [OCGA 16-9-20]
1. Check on out-of-state bank - Warrant issues - felony - no trial or sentencing jurisdiction.
2. Check for $1,500.00 or more - Warrant issues - felony - no trial or sentencing jurisdiction.
3. Check for less than $1,500 and on in-state bank - citation or warrant may issue,
at Court's option. Venue and jurisdiction are proper in Magistrate Court REGARDLESS of whether offense took place in municipality or unincorporated portion of county.
Jurisdiction is concurrent with that of state and superior court. Unlike other state offenses triable in magistrate court, there is no requirement that the venue for bad checks be outside any municipality (See 16.11)
NOTE - The 1994 revisions to OCGA 16-9-20 added debit card sales receipts to checks, drafts, and orders for the payment of money. The offense is now "deposit account fraud" and "instrument" is used in the statute in place of the word "check." Where this chapter refers to "checks", it means "instrument" under the current usage and all of the above instruments are included. Debit cards pose unique problems with respect to criminal prosecutions which have not yet been addressed by the courts - see Purdom, Georgia Magistrate Court Handbook, 13-1.
17.16 Warrant/Accusation Procedure - CHECKLIST
1. Warrant docketed.
2. Delivered to law enforcement officer for service.
3. Defendant arrested and posts bond.
4. Defendant brought before Court for appearance and commitment hearing if unable to make bond [OCGA 17-4-26, URMC §§ 25.1, 25.2].
5. Accusation must be drafted by prosecuting attorney [OCGA 17-7-71]; felonies sent to superior court..
6. Prosecuting attorney of the court which would hear the case upon a demand for jury trial is responsible for prosecutions of deposit account fraud cases in magistrate court [OCGA 15-10-202(e)].
7. Calendar made up from prepared accusations.
8. Letter to defendant by Clerk to attend calendared arraignment (minimum of 5 days before arraignment and copy to surety on bond) [OCGA 17-7-91].
17.17 Citation Procedure - CHECKLIST [OCGA...
