COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 130
(By Senators Snyder and Anderson)
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[Originating in the Committee on the Judiciary;
reported January 22, 1998.]
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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 may 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 may be evidenced by presentation of a return receipt
indicating that the notice was mailed to the drawer by certified
mail or, in the 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 This 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 this notice
shall be is complete
upon mailing.
Such This 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
the 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 this complaint and avoid
arrest by paying to the magistrate court clerk at
...................... the amount due on
said the check and the
costs of this proceeding in the amount of ............... on or
before
said the .......... day of ...................., 19......,
at which time you will be given a receipt with which you can
obtain
said the check from the magistrate named below. The
complainant is forbidden by law to accept payment.
Magistrate Court of .................. County
.............................................
Date: .............................."
Such This 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 the drawer pays the amount
of the check
, plus court costs
and any bank services charges the
holder or payee was required to pay to the magistrate court
within the ten-day period no warrant
shall may 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 immediately mail to the maker of
such the
check the receipt
hereinbelow required
by this section. 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 is 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
, court costs and bank service charge, if
any, plus such court costs as that would be assessed if
such the
person were found guilty of the offense charged.
Such These
costs shall be imposed in accordance with the provisions of
section two, article three, chapter fifty of this code.
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(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.)
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