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Committee Substitute House Bill 4295 History

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Key: Green = existing Code. Red = new code to be enacted
HB4295 SUB
COMMITTEE SUBSTITUTE

FOR

H. B. 4295


(By Delegates Staton, Huntwork, Pino, Whitman,

Kessel, Trump and L. White)


(Originating in the House Committee on the Judiciary)


[February 1, 1994]


A BILL to repeal section seventeen, article three, chapter sixty-one of the code of West Virginia, one thousand nine hundred thirty-one, as amended; to amend and reenact section six, article eight, chapter seventeen-a of said code; to amend and reenact section one, article two, chapter fifty of said code; to amend and reenact section eight, article four of said chapter; to amend and reenact sections twelve and thirteen, article five of said chapter; to amend and reenact sections thirteen, twenty-four, twenty-four-a, twenty-seven, thirty-four and thirty-nine, article three, chapter sixty-one of said code; and to amend and reenact section three, article three-a of said chapter, all relating to jurisdiction of magistrate courts and circuit courts; defining the offenses of injury or tampering with a vehicle or special mobile equipment and providing that offenses involving special mobile equipment may be either a misdemeanor or felony, depending on the dollar amount of any injury, damage, or breakage or removal of parts; prescribing the civil jurisdiction of magistrate courts and the authority of magistrate personnel to administer oaths or affirmations and take affidavits or depositions; providing for the transfer of civil actions to circuit court; providing for appeals in civil cases from magistrate court to circuit court; time periods, bonds, and fees for such appeals; limited record of magistrate proceedings; preparing and designating such records for appeal; circuit court discretion to schedule oral argument, receive memoranda of law, and take evidence; time frame for circuit court review of magistrate proceedings; appeals in criminal cases; time frames, bonds, and stays for such appeals; electronic recording of trials, designation of records, and preparation of transcripts of magistrate proceedings; discretion of circuit court to hear oral argument and receive evidence; distinguishing grand and petit larceny by dollar amounts and establishing penalties therefor; obtaining money, property, and services by false pretenses, disposing of property to defraud creditors, theft of services; distinguishing misdemeanor and felony offenses of false pretenses by dollar amounts and establishing penalties therefor; preserving existing rights, liabilities, and remedies for such offenses; defining offenses involving the attempted or fraudulent use, possession, forgery, and traffic of credit cards; possession and transfer of credit cards and credit card making equipment; false or fraudulent use of telephonic services; defining terminology related to credit card offenses; distinguishing misdemeanor and felony offenses involving the attempted or fraudulent use, possession, forgery, and traffic of credit cards by dollar amounts and establishing penalties for such offenses; defining the offenses of malicious killing of animals by poison or otherwise; distinguishing felony and misdemeanor offenses of malicious killing of animals by poison or otherwise by dollar amounts and establishing penalties therefor; defining offenses involving taking or carrying away or injuring or destroying fruit, vegetables, grain or grass; distinguishing felony or misdemeanor offenses of taking or carrying away or injuring or destroying fruit, vegetables, grain or grass and establishing penalties therefor; defining offenses involving obtaining property in return for worthless checks; liability of persons, firms, corporations, corporate officers, and corporate agents therefor; excluding checks where payee has notice or reason to believe insufficient funds exist; excluding postdated checks; not limiting prosecution for other criminal acts; distinguishing misdemeanor and felony offenses of obtaining property in return for worthless checks by dollar amounts and establishing penalties therefor; establishing penalties for shoplifting; preserving rights to recover stolen merchandise; and time period for calculating number of shoplifting convictions.

Be it enacted by the Legislature of West Virginia:

That section seventeen, article three, chapter sixty-one of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be repealed; that section six, article eight, chapter seventeen-a of said code be amended and reenacted; that section one, article two, chapter fifty of said code be amended and reenacted; that section eight, article four of said chapter be amended and reenacted; that sections twelve and thirteen, article five of said chapter be amended and reenacted; that sections thirteen, twenty-four, twenty-four-a, twenty-seven, thirty-four and thirty-nine of article three, chapter sixty-one of said code be amended and reenacted; and that section three, article three-a of said chapter be amended and reenacted, all to read as follows:

CHAPTER 17A. MOTOR VEHICLE ADMINISTRATION,

REGISTRATION, CERTIFICATE OF TITLE,

AND ANTITHEFT PROVISIONS.

ARTICLE 8. SPECIAL ANTITHEFT LAWS.

§ 17A - 8 - 6. Injuring or tampering with vehicle or special mobile equipment.

(a) Any person who either individually or in association with one or more persons willfully injures or tampers with any vehicle or breaks or removes any part or parts of or from a vehicle without the consent of the owner is guilty of a misdemeanor.

Any person who with intent to commit any malicious mischief, injury, or other crime climbs into or upon a vehicle whether it is in motion or at rest or with like intent attempts to manipulate any of the levers, starting mechanism, brakes, or other mechanism or device of a vehicle while the same is at rest and unattended or with like intent sets in motion any vehicle while the same is at rest and unattended is guilty of a misdemeanor.
(b) Any person, either individually or in association with one or more persons, who shall willfully injure or damage any item of special mobile equipment or break or remove any parts from an item of special mobile equipment, without the consent of the owner, which injury, damage, or breakage or removal of parts shall be of an amount of two hundred one thousand dollars or more, shall be is guilty of a felony. If the injury, damage, or breakage or removal of parts shall be of an amount which is less than two hundred one thousand dollars, such person or persons shall be is guilty of a misdemeanor.
CHAPTER 50. MAGISTRATE COURTS.

ARTICLE 2. JURISDICTION AND AUTHORITY.
§ 50 - 2 - 1. Civil jurisdiction.
Except as limited herein and in addition to jurisdiction granted elsewhere to magistrate courts, or justices of the peace, magistrate such courts shall have jurisdiction of all civil actions wherein the value or amount in controversy or the value of property sought, exclusive of interest and cost, is not more than three five thousand dollars. Magistrate courts shall have jurisdiction of all matters involving unlawful entry or detainer of real property or involving wrongful occupation of residential rental property, so long as the title to such property is not in dispute. Except as the same may be in conflict with the provisions of this chapter, the provisions of article three, chapter fifty-five of this code, regarding unlawful entry and detainer, shall apply to such actions in magistrate court. Magistrate courts shall have jurisdiction of actions on bonds given pursuant to the provisions of this chapter. Magistrate courts shall have continuing jurisdiction to entertain motions in regard to post-judgment process issued from magistrate court and decisions thereon may be appealed in the same manner as judgments.
Magistrate courts shall not have jurisdiction of actions in equity, of matters in eminent domain, of matters in which the title to real estate is in issue, of proceedings seeking satisfaction of liens through the sale of real estate, of actions for false imprisonment, of actions for malicious prosecution or of actions for slander or libel or of any of the extraordinary remedies set forth in chapter fifty-three of this code.
Magistrates, magistrate court clerks, magistrate court deputy clerks, and magistrate assistants shall have the authority to administer any oath or affirmation, to take any affidavit or deposition, unless otherwise expressly provided by law, and to take, under such regulations as are prescribed by law, the acknowledgment of deeds and other writings.
ARTICLE 4. PROCEDURE BEFORE TRIAL.
§ 50 - 4 - 8. Removal Transfer of civil actions to circuit court.

At any time before trial in a civil action involving less than three hundred dollars the action may be removed to circuit court upon the concurrence of all parties and upon the payment of the circuit court filing fee. At any time before trial in a civil action involving three hundred dollars or more, any party may, upon payment of the circuit court filing fee, cause such action to be removed to the circuit court. All appropriate documents shall then be forwarded along with such fee to the clerk of the circuit court. The matter shall then be heard by the circuit court.

(a) In a civil action in magistrate court involving one thousand five hundred dollars or more in controversy, any party may, by a petition timely filed, petition the circuit court to transfer such action to the circuit court:
Provided, That there shall be no right to transfer any proceeding brought or pending under article three-a, chapter fifty-five of this code. Such petition shall be deemed to be timely filed if it is filed within the thirty day period next following valid service of process on all parties required to be served in the action and prior to trial. If the circuit court, after notice to all parties to the action and a hearing, determines that transfer is proper, the appropriate documents shall then be forwarded to the circuit court. The party originally petitioning for transfer shall pay a circuit court filing fee to the clerk of the circuit court, unless the party has been permitted to proceed without prepayment in accordance with the provisions of section one, article two, chapter fifty-nine of this code. The matter shall then be heard by the circuit court.
(b) In ruling upon a petition for transfer, the primary consideration by the court shall be whether such proposed transfer would promote the efficient and economic operation of the courts involved, and the court may consider such factors as the complexity of the litigation, whether the action is of a nature as to require discovery or other application of the rules of civil procedure, whether the action involves matters which are related to other actions pending in the circuit court, or whether the action involves matters of first impression.
ARTICLE 5. TRIALS, HEARINGS AND APPEALS.
§ 50 - 5 - 12. Appeals in civil cases.

(a) Any person may appeal the judgment of a magistrate court to the circuit court as a matter of right by requesting such appeal not later than twenty days after such judgment is rendered or not later than twenty days after a decision is rendered upon a motion to set aside such judgment. Such person shall be required to post a bond with good security in a reasonable amount not less than the reasonable court costs of the appeal nor more than the sum of the judgment and the reasonable court costs of the appeal, upon the condition that such person will satisfy the judgment and any court costs which may be rendered against him on any such appeal. The circuit court filing fee shall be collected by the magistrate court clerk or deputy clerk at the time the appeal is requested, which said fee shall be forwarded to the clerk of the circuit court along with other appropriate documents regarding the appeal. No bond shall be required of any governmental agency or authority or of a person who has filed an affidavit pursuant to been permitted to proceed without prepayment in accordance with the provisions of section one, article two, chapter fifty-nine of this code. If no appeal is perfected within such twenty-day period, the circuit court of the county may, not later than ninety days after the date of judgment, grant an appeal upon a showing of good cause why such appeal was not perfected within such twenty-day period. The filing or granting of an appeal shall automatically stay further proceedings to enforce the judgment.

(b) Trial in circuit court shall be de novo. For purposes of appeal, magistrate courts shall be courts of limited record. Trials before a magistrate shall be recorded electronically. A magnetic tape or other electronic recording medium on which a trial is recorded shall be indexed and securely preserved by the magistrate court clerk. When requested by either of the parties or any interested person, the magistrate court clerk shall provide a duplicate copy of the tape or other electronic recording medium of each trial held. For evidentiary purposes, a duplicate of such electronic recording prepared by the magistrate court clerk shall be a "writing" or "recording" as those terms are defined in rule 1001 of the West Virginia rules of evidence, and unless the duplicate is shown not to reflect the contents accurately, it shall be treated as an original in the same manner that data stored in a computer or similar data is regarded as an "original" under such rule. Unless a party requesting the copy has been permitted to proceed without prepayment in accordance with the provisions of section one, article two, chapter fifty-nine of this code, the party shall pay to the magistrate court an amount equal to the actual cost of the tape or other medium or the sum of five dollars, whichever is greater.
(c) To prepare the record for appeal, the party seeking the appeal shall file with the circuit court a petition setting forth the grounds relied upon, and designating those portions of the testimony or other matters reflected in the recording, if any, which he or she will rely upon in prosecuting the appeal. The responding party or parties may designate additional portions of the recording. Unless otherwise ordered by the circuit court, the preparation of a transcript of the designated portions of the recording and the payment of the cost thereof shall be the responsibility of the party requesting the transcript:
Provided, That a party may be permitted to proceed without prepayment in accordance with the provisions of section one, article two, chapter fifty-nine of this code. The circuit court may, by general order or by order entered in a specific case, dispense with preparation of a transcript and review the designated portions of the recording aurally.
(d) The designated portions of the recording or the transcript thereof, as the case may be, and the exhibits, together with all papers and requests filed in the proceeding, constitute the exclusive record for appeal and shall be made available to the parties.
(e) After the record for appeal is filed in the office of the circuit clerk, the court may, in its discretion, schedule the matter for oral argument or require the parties to submit written memoranda of law. The circuit court shall consider questions of law as to the existence or sufficiency of the evidence to support the judgment or order of the magistrate court. If the circuit court finds that a record for appeal is deficient as to matters which might be affected by evidence not considered or inadequately developed, the court may proceed to take such evidence and make independent findings of fact to the extent that questions of fact and law may merge in determining whether the evidence was such, as a matter of law, as to require a particular finding. In no event may the circuit court determine a fact where no issue was made in the magistrate court, and where the record contains no evidence from which the question could be determined. If the action in the magistrate court was tried before a jury, and if a necessary determination of fact which only a jury could make is absent, the circuit court may not itself make that determination of fact.
(f) The circuit court may take any of the following actions which may be necessary to dispose of the questions presented on appeal, with justice to the parties:
(1) Dismiss the appeal;
(2) Reverse, affirm, or modify the judgment or order being appealed;
(3) Remand the case for further proceedings, with instructions to the magistrate; or
(4) Finally dispose of the action by entering judgment on appeal.
(g) If, after the appeal is regularly placed upon the docket of the circuit court, neither party brings the matter on to hearing before the end of the second term thereafter at which it is called for trial, unless good cause for a continuance is shown, the appeal shall be considered as abandoned and shall be dismissed at the cost of the appellant unless sufficient cause is shown for a further continuance and the judgment of the magistrate court shall stand. No appeal which shall have been so dismissed by the circuit court shall be reinstated after the close of the next regular term after such dismissal. The review by the court and a decision on the appeal shall be completed within ninety days after the appeal is regularly placed upon the docket of the circuit court.
(h) The designation in this section of magistrate courts as "courts of limited record" shall not be construed to give standing or eligibility to magistrates to participate or be included in the retirement system for judges of courts of record established under the provisions of article nine, chapter fifty-one of this code.
§ 50 - 5 - 13. Appeals in criminal cases.

(a) Any person convicted of an offense in a magistrate court may appeal such conviction to circuit court as a matter of right by requesting such appeal within twenty days of the sentencing for such conviction. The magistrate may require the posting of bond with good security conditioned upon the appearance of the defendant as required in circuit court, but such bond may not exceed the maximum amount of any fine which could be imposed for the offense. Such bond may be upon the defendant's own recognizance. If no appeal is perfected within such twenty-day period, the circuit court of the county may, not later than ninety days after the sentencing, grant an appeal upon a showing of good cause why such appeal was not filed within such twenty-day period. The filing or granting of an appeal shall automatically stay the sentence of the magistrate.

(b) Trial in circuit court shall be de novo:
Provided, That any person charged with a traffic offense which does not subject a person to a period of incarceration who wishes a jury trial shall elect prior to trial to receive said trial by jury in either the magistrate court or circuit court. Any person charged with such a traffic offense who elects to receive a trial by jury in the magistrate court shall receive a trial to the court on appeal. For purposes of appeal, magistrate courts shall be courts of limited record. Criminal trials before a magistrate shall be recorded electronically. A magnetic tape or other electronic recording medium on which a trial is recorded shall be indexed and securely preserved by the magistrate court clerk. When requested by the defendant, the prosecuting attorney, or any interested person, the magistrate court clerk shall provide a duplicate copy of the tape or other electronic recording medium of the trial. For evidentiary purposes, a duplicate of such electronic recording prepared by the magistrate court clerk shall be a "writing" or "recording" as those terms are defined in rule 1001 of the West Virginia rules of evidence, and unless the duplicate is shown not to reflect the contents accurately, it shall be treated as an original in the same manner that data stored in a computer or similar data is regarded as an "original" under such rule. Unless the defendant is indigent, he or she shall pay to the magistrate court an amount equal to the actual cost of the tape or other medium or the sum of five dollars, whichever is greater.
(c) To prepare the record for appeal, the defendant shall file with the circuit court a petition setting forth the grounds relied upon, and designating those portions of the testimony or other matters reflected in the recording, if any, which he or she will rely upon in prosecuting the appeal. The prosecuting attorney may designate additional portions of the recording. Unless otherwise ordered by the circuit court, the preparation of a transcript of the portions of the recording designated by the defendant, and the payment of the cost thereof shall be the responsibility of the defendant:
Provided, That such costs may be waived due to the defendant's indigency. The circuit court may, by general order or by order entered in a specific case, dispense with preparation of a transcript and review the designated portions of the recording aurally.
(d) The designated portions of the recording or the transcript thereof, as the case may be, and the exhibits, together with all papers and requests filed in the proceeding, constitute the exclusive record for appeal, and shall be made available to the defendant and the prosecuting attorney.
(e) After the record for appeal is filed in the office of the circuit clerk, the court may, in its discretion, schedule the matter for oral argument or require the parties to submit written memoranda of law. The circuit court shall consider questions of law as to the existence or sufficiency of the evidence to support the judgment or order of the magistrate court. If the circuit court finds that a record for appeal is deficient as to matters which might be affected by evidence not considered or inadequately developed, the court may proceed to take such evidence and make independent findings of fact to the extent that questions of fact and law may merge in determining whether the evidence was such, as a matter of law, as to require a particular finding. In no event may the circuit court determine a fact where no issue was made in the magistrate court, and where the record contains no evidence from which the question could be determined. If the action in the magistrate court was tried before a jury, and if a necessary determination of fact which only a jury could make is absent, the circuit court may not itself make that determination of fact.
(f) The circuit court may take any of the following actions which may be necessary to dispose of the questions presented on appeal, with justice to the defendant and the state:
(1) Dismiss the appeal;
(2) Reverse, affirm, or modify the judgment or order being appealed;
(3) Remand the case for further proceedings, with instructions to the magistrate; or
(4) Finally dispose of the action by entering judgment on appeal.
(g) The review by the court and a decision on the appeal shall be completed within ninety days after the appeal is regularly placed upon the docket of the circuit court.
(h) The designation in this section of magistrate courts as "courts of limited record" shall not be construed to give standing or eligibility to magistrates to participate or be included in the retirement system for judges of courts of record established under the provisions of article nine, chapter fifty-one of this code.
(i) Notwithstanding any other provision of this code to the contrary, there shall be no appeal from a plea of guilty where the defendant was represented by counsel at the time the plea was entered: Provided, That the defendant shall have an appeal from a plea of guilty where an extraordinary remedy would lie or where the magistrate court lacked jurisdiction.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.

ARTICLE 3. CRIMES AGAINST PROPERTY.
§ 61 - 3 - 13. Grand and petit larceny distinguished; penalties.

(a) If any a person commits simple larceny of goods or chattels of the value of two hundred one thousand dollars or more, such person shall be is guilty of a felony, designated grand larceny, and, upon conviction thereof, shall be confined imprisoned in a the penitentiary not less than one nor more than ten years, or, in the discretion of the court, be confined in the county jail not more than one year and shall be fined not more than two thousand five hundred dollars.

(b) If any a person commits simple larceny of goods or chattels of the value of less than two hundred one thousand dollars, such person shall be is guilty of a misdemeanor, designated petit larceny, and, upon conviction thereof, shall be confined in the county jail for a term not to exceed one year or fined not to exceed two thousand five hundred dollars, or both, in the discretion of the court.
§ 61 - 3 - 24. Obtaining money, property and services by false pretenses; disposing of property to defraud creditors; penalties.

(a) (1) If any a person obtain obtains from another by any false pretense, token or representation, with intent to defraud, any money, goods or other property which may be the subject of larceny,; or

(2) if he obtain If a person obtains on credit from another any money, goods or other property, which may be the subject of larceny, on credit, by representing that there is money due him or her or to become due him or her, and shall assign his assigns the claim for such money, in writing, to the person from whom he or she shall obtain obtains such money, goods or other property, and shall afterwards collect collects the same money due or to become due, without the consent of such the assignee, and with the intent to defraud,;
(3) in either case, be Such person is guilty of larceny. and, if If the value of the money, goods or other property is two hundred one thousand dollars or more, such person is guilty of a felony, and, upon conviction thereof, shall be confined imprisoned in a the penitentiary not less than one year nor more than ten years, or, in the discretion of the court, be confined in the county jail not more than one year and be fined not more than two thousand five hundred dollars. If the value of the money, goods or other property is less than two hundred one thousand dollars, such person is guilty of a misdemeanor, and, upon conviction thereof, shall be confined in the county jail not more than one year or fined not more than two thousand five hundred dollars, or both,. in the discretion of the court.
(b) If any a person obtain obtains by any false pretense, token or representation, with intent to defraud, the signature of any other person another to a writing, the false making whereof of which would be forgery, such the person is guilty of a felony, and, upon conviction thereof, shall be confined imprisoned in the penitentiary not less than one year nor more than five years, or, in the discretion of the court, be confined in the county jail not more than one year and fined not more than two thousand five hundred dollars.
(c) (1) And any person who If a person removes any of his or her property out of any county with the intent to prevent the same from being levied upon by any execution,; or
(2) If a person who secretes, assigns or conveys, or otherwise disposes of any of his or her property with the intent to defraud any creditor or to prevent such the property from being made liable for payment of his debts,; and any person who receives such property with such intent, or
(3) If a person receives the property of another with the intent to defraud any creditor or to prevent the property from being made liable for the payment of debts;
(4) The person is guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than twenty-five nor more than one thousand two thousand five hundred dollars and be confined in the county jail not more than one year. And when the property so removed, secreted, concealed, assigned, conveyed, received or otherwise disposed of, is worth fifty dollars or less, such offense shall be tried by a magistrate in the mode prescribed for the trial of other criminal offenses by a magistrate:
Provided, That upon conviction for such offense before a magistrate the person so convicted shall be fined not more than fifty dollars and confined in the county jail not more than thirty days. But nothing in this section contained shall prevent any creditor from proceeding against any such fraudulent debtor as provided in article five, chapter thirty-eight, and in article seven, chapter fifty-three of this code, or of any other remedy in equity or at law now existing.
(b) (d) If any a person, firm or corporation obtain obtains labor, services or any other such thing of value from another by any false pretense, token or representation, with intent to defraud, that the person, firm or corporation is guilty of theft of services. and if If the value of the labor, services or any other such thing of value is two hundred one thousand dollars or more, the person, firm or corporation is guilty of a felony, and, upon conviction thereof, shall be confined imprisoned in a the penitentiary not less than one year nor more than ten years, or, in the discretion of the court, be confined in the county jail not more than one year and be fined not more than two thousand five hundred dollars. If the value of the labor, services or any other such thing of value is less than two hundred one thousand dollars, that the person, firm or corporation is guilty of a misdemeanor, and, upon conviction thereof, shall be confined in the county jail not more than one year or fined not more than two thousand five hundred dollars, or both, in the discretion of the court.
(c) (e) Theft of services includes the obtaining of a stop payment order on a check, draft or order for payment of money owed for services performed in good faith and in substantial compliance with a written or oral contract for services, with the fraudulent intent to permanently deprive the provider of such labor, services or other such thing of value of the payment represented by such check, draft or order. Notwithstanding the penalties set forth elsewhere in this section, any person, firm or corporation violating the provisions of this subsection is guilty of a misdemeanor, and, upon conviction thereof, shall be fined not more than two times the face value of the check, draft or order.
(d) (f) Imposition of any penalty Prosecution for an offense under this section does not bar or otherwise affect adversely any right or liability to damages, forfeiture or other civil remedy arising from any or all elements of the criminal offense.
§ 61 - 3 - 24a. Attempted or fraudulent use, forgery, traffic of credit cards; possession and transfer of credit cards and credit card making equipment; false or fraudulent use of telephonic services; penalties.

(a) As used in this section:

(1) "Counterfeit credit card" means the following:
(A) Any credit card or a representation, depiction, facsimile, aspect or component thereof that is counterfeit, fictitious, altered, forged, lost, stolen, incomplete or obtained in violation of this section, or as part of a scheme to defraud; or
(B) Any invoice, voucher, sales draft or other reflection or manifestation of such a card.
(2) "Credit card making equipment" means any equipment, machine, plate mechanism, impression or any other contrivance which can be used to produce a credit card, a counterfeit credit card, or any aspect or component of either.
(3) "Traffic" means:
(A) To sell, transfer, distribute, dispense or otherwise dispose of any property; or
(B) To buy, receive, possess, obtain control of or use property with the intent to sell, transfer, distribute, dispense or otherwise dispose of such property.
(4) "Notice" means either information given in person or information given in writing to the person to whom the number, card or device was issued. The sending of a notice in writing by registered or certified mail in the United States mail, duly stamped and addressed to such person at his last known address, is prima facie evidence that such notice was duly received. A cardholder's knowledge of the revocation of his or her credit card may be reasonably inferred by evidence that notice of such revocation was mailed to him or her, at least four days prior to his or her use or attempted use of the credit card, by first class mail at his or her last known address.
(b) (1) It is unlawful for any person knowingly to obtain or attempt to obtain credit, or to purchase or attempt to purchase any goods, property or service, by the use of any false, fictitious or counterfeit credit card, telephone number, credit number or other credit device, or by the use of any credit card, telephone number, credit number or other credit device of another beyond or without the authority of the person to whom such card, number or device was issued, or by the use of any credit card, telephone number, credit number or other credit device in any case where such card, number or device has been revoked and notice of such revocation has been given to the person to whom issued.
(2) It is unlawful for any person knowingly to obtain or attempt to obtain, by the use of any fraudulent scheme, device, means or method, telephone or telegraph service or the transmission of a message, signal or other communication by telephone or telegraph, or over telephone or telegraph facilities with intent to avoid payment of charges therefor.
(3) Any person who violates any provision of this subsection, if the credit, goods, property, service or transmission is of the value of two hundred one thousand dollars or more, is guilty of a felony, and, upon conviction thereof, shall be imprisoned in a the penitentiary not less than one year nor more than ten years or;, in the discretion of the court, be confined in jail not more than one year and be fined not more than two thousand five hundred dollars; and if of less value, is guilty of a misdemeanor, and, upon conviction thereof, shall be imprisoned confined in the county or regional jail not exceeding more than one year or fined not more than two thousand five hundred dollars, or both. imprisoned and fined. Any person convicted of an attempt to commit an offense under the provisions of this subsection is guilty of a misdemeanor, and, upon conviction thereof, shall be imprisoned in the county or regional jail not exceeding six months or fined not less than fifty nor more than three hundred dollars, or both imprisoned and fined.
(c) A person is guilty of forgery of a credit card when he or she makes, manufactures, presents, embosses, alters or utters a credit card with intent to defraud any person, issuer of credit or organization providing money, goods, services, or anything else of value in exchange for payment by credit card and he or she is guilty of a felony, and, upon conviction thereof, shall be imprisoned in the penitentiary not less than one year nor more than ten years, or, in the discretion of the court, be imprisoned confined in the county or regional jail not more than one year and fined not less than fifty nor more than two thousand five hundred dollars.
(d) Any person who traffics in or attempts to traffic in ten or more counterfeit credit cards or credit card account numbers of another in any six-month period is guilty of a felony, and, upon conviction thereof, shall be imprisoned in the penitentiary not less than one year nor more than ten years, or, in the discretion of the court, be imprisoned confined in the county or regional jail not more than one year and fined not less than fifty nor more than two thousand five hundred dollars.
(e) A person who receives, possesses, transfers, buys, sells, controls or has custody of any credit card making equipment with intent that the equipment be used in the production of counterfeit credit cards is guilty of a felony, and, upon conviction thereof, shall be imprisoned in the penitentiary not less than one year nor more than five ten years, or, in the discretion of the court, be imprisoned confined in the county or regional jail not more than one year and fined not less than five hundred one thousand nor more than five thousand dollars.
(f) A person who knowingly receives, possesses, acquires, controls or has custody of a counterfeit credit card is guilty of a misdemeanor, and, upon conviction thereof, shall be imprisoned confined in the county or regional jail not exceeding six months or fined not less than fifty nor more than three five hundred dollars, or both. fined and imprisoned.
§ 61 - 3 - 27. Malicious killing of animals by poison or otherwise; penalty.

If any a person maliciously administer administers poison to, or expose it exposes poison with the intent that it should be taken by, any horse, cattle cow or other beast, animal of another person, or if any person maliciously maim, kill, or cause maims, kills, or causes the death of any horse, cattle cow or other beast, animal of another person, of the value of fifty one hundred dollars or more, he shall be the person is guilty of a felony, and, upon conviction, shall be confined imprisoned in the penitentiary not less than one year nor more than five ten years; and, if it be the horse, cow or other animal is of less value than fifty one hundred dollars, he shall be the person is guilty of a misdemeanor, and, upon conviction, shall be confined in jail not more than three months and fined not more than fifty five hundred dollars,: in the discretion of the court: Provided, That this section shall not be construed to include dogs.

§ 61 - 3 - 34. Taking or injuring garden or field crops; penalties.

If any a person shall enter enters the orchard, field, garden or market garden of another person, without the consent of the owner or occupier thereof, and shall do does any damage to the fruit, vegetables, grain or grass growing or being thereon, or shall take, carry away, injure or destroy takes, carries away, injures or destroys any of the grain, fruit, grass or vegetables growing or being thereon, he shall be the person is guilty of a misdemeanor, and, upon conviction, shall be fined not less than five more than five hundred dollars, or confined in jail not exceeding six months, or both,. in the discretion of the court. If any a person commit commits any of the acts mentioned herein, and it be if it is charged in the indictment or information and proven proved that the property injured or destroyed, or taken or carried away, be of is of a greater value than fifty one thousand dollars, the offender shall be person is guilty of a felony, and, upon conviction, confined shall be imprisoned in the penitentiary not less than one nor more than two years. one year nor more than ten years, or, in the discretion of the court, be confined in jail not more than one year and fined not less than fifty nor more than two thousand five hundred dollars.

§ 61 - 3 - 39. Obtaining property in return for worthless check; penalty.

It shall be is unlawful for any person, firm or corporation to obtain any money, services, goods or other property or thing of value by means of a check, draft or order for the payment of money or its equivalent upon any bank or other depository, knowing at the time of the making, drawing, issuing, uttering or delivering of such the check, draft or order that there is not sufficient funds on deposit in or credit with such bank or other depository with which to pay the same upon presentation. The making, drawing, issuing, uttering or delivery of any such check, draft or order, for or on behalf of any corporation, or its name, by any officer or agent of such corporation, shall subject such officer or agent to the penalties of this section to the same extent as though such check, draft or order was his own personal act, when such agent or officer knows that such corporation does not have sufficient funds on deposit in or credit with such bank or depository from which such check, draft or order can legally be paid upon presentment.

This section shall not apply to any such check, draft or order when the payee or holder knows or has been expressly notified prior to the acceptance of same or has reason to believe that the drawer did not have on deposit or to his credit with the drawee sufficient funds to insure payment as aforesaid, nor shall this section apply to any postdated check, draft or order.
No prosecution shall be confined to the provisions of this section by virtue of the fact that worthless checks, drafts or orders may be employed in the commission of some other criminal act.
Any A person who shall violate violates the provisions of this section, if the amount of the check, draft or order is less than two hundred five hundred dollars, shall be is guilty of a misdemeanor, and, upon conviction thereof, the person shall be fined not more than two hundred dollars, or imprisoned confined in jail not more than six months, or both. fined and imprisoned. Any A person who shall violate violates the provisions of this section, if the amount of the check, draft or order is two hundred five hundred dollars or more, shall be is guilty of a felony, and, if convicted upon conviction thereof, the person shall be fined not more than five hundred dollars, or imprisoned in the penitentiary not less than one year nor more than five ten years, or both. fined and imprisoned.
ARTICLE 3A. SHOPLIFTING.
§ 61 - 3A - 3. Penalties.

A person convicted of shoplifting shall be punished as follows:

(a) First offense conviction. -- Upon a first shoplifting conviction:
(1) When the value of the merchandise is less than or equal to one five hundred dollars, the defendant shall be person is guilty of a misdemeanor and shall be fined not more than two hundred fifty dollars.
(2) When the value of the merchandise exceeds one five hundred dollars, the defendant shall be person is guilty of a misdemeanor and shall be fined not less than one hundred dollars, nor more than five hundred dollars, and such fine shall not be suspended;, or the defendant person shall be imprisoned confined in the county jail not more than sixty days;, or both. fined and imprisoned.
(b) Second offense conviction. -- Upon a second shoplifting conviction:
(1) When the value of the merchandise is less than or equal to one five hundred dollars, the defendant shall be person is guilty of a misdemeanor and shall be fined not less than one hundred dollars nor more than five hundred dollars, and such fine shall not be suspended;, or the defendant person shall be imprisoned confined in the county jail not more than six months; or both fined and imprisoned.
(2) When the value of the merchandise exceeds one five hundred dollars, the defendant shall be person is guilty of a misdemeanor and shall be fined not less than five hundred dollars and shall be imprisoned confined in the county jail for not less than six months nor more than one year. At least thirty days shall actually be spent in confinement and not subject to probation.
(c) Third offense convictions. -- Upon a third or subsequent shoplifting conviction, regardless of the value of the merchandise, the defendant shall be person is guilty of a felony and shall be fined not less than five hundred dollars nor more than five thousand dollars, and shall be imprisoned in the penitentiary for not less than one year to nor more than ten years. At least one year shall actually be spent in confinement and not subject to probation. Provided, That an order for home detention by the court pursuant to the provisions of article eleven-b, chapter sixty-two of this code may be used as an alternative sentence to the incarceration required by this subsection.
(d) Mandatory penalty. -- In addition to the fines and imprisonment imposed by this section, in all cases of conviction for the offense of shoplifting, the court shall order the defendant to pay a penalty to the mercantile establishment involved in the amount of fifty dollars, or double the value of the merchandise involved, whichever is higher. The mercantile establishment shall be entitled to collect such mandatory penalty as in the case of a civil judgment. This penalty shall be in addition to the mercantile establishment's rights to recover the stolen merchandise.
(e) In determining the number of prior shoplifting convictions for purposes of imposing punishment under this section, the court shall disregard all such convictions occurring more than seven years prior to the shoplifting offense in question.

NOTE: The purpose of this bill is to restructure the civil and criminal jurisdiction of magistrate courts and circuit courts. The bill increases magistrate court jurisdiction in civil cases from $3,000 to $5,000. It eliminates trial de novo on appeals from magistrate court to circuit court. It redefines certain property offenses in the criminal law by changing the level at which the offenses become felonies rather than misdemeanors.
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