H. B. 4069
(By Delegates Tillis, Hunt, Seacrist, Staton,
Ashley, Manuel and Yeager)
[Introduced January 16, 1996; 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, relating to crimes and
their punishment; crimes against property; worthless checks;
and providing for magistrates to collect bank service
charges for the holder or payee.
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 the 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 the check, draft or order a notice in form
substantially as follows and shall impose additional court costs
in the amount of ten 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 the check, draft
or order. Service of
such the notice shall be complete upon mailing.
Such The 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 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 the payment is
made by mail, the magistrate court clerk shall forthwith mail to
the maker of
such the check the receipt hereinbelow required. In
the event
such the 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 the total amount the
magistrate court clerk shall issue to the drawer a receipt
sufficiently describing
such the 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,
together with any bank service charge
the holder or payee was required to pay as a result of the dishonored check, draft or order, 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 the
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
and bank service charge, if any, plus
such the court costs as would be assessed if
such the person were
found guilty of the offense charged.
Such The 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 permit the holder or
payee of a worthless check to collect bank service charges when
prosecuting in Magistrate Court.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.