H. B. 2727
(By Delegates J. Martin and Proudfoot )
[Introduced February 24, 1995; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact section thirty-nine-g, article three,
chapter sixty-one of the code of West Virginia, one thousand
nine hundred thirty-one, as amended, related to raising the
fee collected by magistrate court in worthless check cases.
Be it enacted by the Legislature of West Virginia:
That section thirty-nine-g, article three, chapter sixty-one
of the code of West Virginia, one thousand nine hundred
thirty-one, as amended, be amended and reenacted to read as
follows:
ARTICLE 3. CRIMES AGAINST PROPERTY.
§61-3-39g. Complaint; notice of complaint; issuance of warrant;
payment procedures; costs.
After receipt of a complaint for warrant for a violation of
section thirty-nine or thirty-nine-a of this article the
magistrate court shall proceed with the issuance of the warrant
as is provided by law: Provided, That no warrant shall issue for
an offense under section thirty-nine or thirty-nine-a of this
article which, upon conviction, would be punishable as a
misdemeanor, unless and until the payee or holder of the check,
draft or order which has been dishonored has sent notice thereof
to the drawer of the check, draft or order in accordance with the
provisions of section thirty-nine-e of this article, or unless
and until notice has been sent by the magistrate as hereinafter
provided. Proof that such notice was sent by the payee or holder
shall be evidenced by presentation of a return receipt indicating
that the notice was mailed to the drawer by certified mail, or,
in event the mailed notice was not received or was refused by the
drawer, by presentation of the mailed notice itself. The
magistrate court shall receive and hold the check, draft or
order.
Upon receipt of a complaint for a misdemeanor warrant
unaccompanied by proof that notice was sent by the payee or
holder, the magistrate court shall immediately prepare and mail
to the drawer of such check, draft or order a notice in form
substantially as follows and shall impose additional court costs
in the amount of ten fifteen dollars. Such notice shall be
mailed to the drawer by United States mail, first class and
postpaid, at the address provided at the time of presenting such
check, draft or order. Service of such notice shall be complete
upon mailing. Such notice shall be in form substantially as
follows:
"You are hereby notified that a complaint for a warrant for
your arrest has been filed with this office to the following
effect and purpose by .............. who upon oath complains that
on the ....... day of ..............., 19...., you did unlawfully
issue and deliver unto him a certain check in the amount of
......................... drawn on ..............................
...................... (name of bank) ................. where you did not have funds on deposit in or credit with said bank with
which to pay the same upon presentation and pray that a warrant
issue and that you be apprehended wherever you may be found by an
officer authorized to make such an arrest and dealt with in
accordance with the laws of the state of West Virginia.
A warrant for arrest will be issued on or after the
......... day of ......................., 19......
You can nullify the effect of said complaint and avoid
arrest by paying to the magistrate court clerk at
...................... the amount due on said check and the costs
of this proceeding in the amount of ............... on or before
said .......... day of ...................., 19......, at which
time you will be given a receipt with which you can obtain said
check from the magistrate named below. The complainant is
forbidden by law to accept payment.
Magistrate Court of .................. County
.............................................
Date: .............................."
Such notice shall give the drawer of any such check, draft
or order ten days within which to make payment to magistrate
court. In the event such drawer pays the amount of the check
plus court costs to the magistrate court within the ten-day
period no warrant shall issue. The payment may be made to the
magistrate court in person or by mail by cash, certified check,
bank draft or money order and, in the event such payment is made
by mail, the magistrate court clerk shall forthwith mail to the
maker of such check the receipt hereinbelow required. In the
event such total amount is not so paid the court shall proceed
with the issuance of the warrant as is provided by law.
Upon receipt of payment of such total amount the magistrate
court clerk shall issue to the drawer a receipt sufficiently
describing such check with which receipt the drawer shall be
entitled to receive the dishonored check, draft or order from the
magistrate holding the check, draft or order. No service charge
shall be charged or collected by the holder or payee of a
dishonored check, draft or order after filing a complaint for warrant. The magistrate court clerk shall forward the amount of
the check to the payee or holder thereof, along with a
description of the check, draft or order sufficient to enable the
person filing the complaint to identify such check, draft or
order and the transaction involved. Costs collected shall be
dealt with as is provided by law for other criminal proceedings.
The drawer of a check, draft or order against whom a warrant
has been issued may at any time prior to trial pay to the court
the amount of the check plus such court costs as would be
assessed if such person were found guilty of the offense charged.
Such costs shall be imposed in accordance with the provisions of
section two, article three, chapter fifty of this code.
NOTE: The purpose of this bill is to increase the fee
charged by Magistrate Court in worthless check cases from ten
dollars to fifteen dollars.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.