House Bill 38

AN ACT TO AMEND SECTIONS 97-19-67 AND 97-19-75, MISSISSIPPI CODE OF 1972, TO REVISE PENALTY, COLLECTION AND RESTITUTION PROVISIONS RELATED TO BAD CHECKS; AND FOR RELATED PURPOSES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. Section 97-19-67, Mississippi Code of 1972, is amended as follows:

97-19-67. (1) Except as may be otherwise provided by subsection (2) of this section, any person violating Section 97-19-55, upon conviction, shall be punished as follows:

(a) For the first offense of violating said section, where the check, draft or order involved be less than One Hundred Dollars ($100.00), the person committing such offense shall be guilty of a misdemeanor and, upon conviction, shall be punished by a fine of not less than Twenty-five Dollars ($25.00), nor more than Five Hundred Dollars ($500.00), or by imprisonment in the county jail for a term of not less than five (5) days nor more than six (6) months, or by both such fine and imprisonment, in the discretion of the court;

(b) Upon commission of a second offense of violating said section, where the check, draft or order involved is less than One Hundred Dollars ($100.00), the person committing such offense shall be guilty of a misdemeanor and, upon conviction, shall be punished by a fine of not less than Fifty Dollars ($50.00) nor more than One Thousand Dollars ($1,000.00), or by imprisonment in the county jail for a term of not less than thirty (30) days nor more than one (1) year, or by both such fine and imprisonment, in the discretion of the court;

(c) Upon commission of a third or any subsequent offense of violating said section, regardless of the amount of the check, draft or order involved, and regardless of the amount of the checks, drafts or orders involved in the prior convictions, the person committing such offense shall be guilty of a felony and, upon conviction, shall be punished by imprisonment in the State Penitentiary for a term of not less than one (1) nor more than five (5) years;

(d) Where the check, draft or order involved shall be One Hundred Dollars ($100.00) or more, the person committing such offense, whether same be a first or second offense, shall be guilty of a felony and, upon conviction, shall be punished by a fine of not less than One Hundred Dollars ($100.00) nor more than One Thousand Dollars ($1,000.00), or by imprisonment in the State Penitentiary for a term of not more than three (3) years, or by both such fine and imprisonment, in the discretion of the court. Upon conviction of a third or any subsequent offense, the person convicted shall be punished as is provided in the immediately preceding paragraph hereof;

(e) Any person who is guilty of a third or subsequent violation of Section 97-19-55 may also have their picture and a description of the violation published in a newspaper of general circulation in the jurisdiction where the violation occurred.

(2) Where the conviction was based on a worthless check, draft or order given for the purpose of satisfying a preexisting debt or making a payment or payments on a past-due account or accounts, no imprisonment shall be ordered as punishment, but the court may order the convicted person to pay a fine of up to the applicable amounts prescribed in paragraphs (1)(a),(b) and (d) of this section.

(3) In addition to or in lieu of any penalty imposed under the provisions of subsection (1) or subsection (2) of this section, the court shall order any person convicted of violating Section 97-19-55 to make restitution in accordance with the provisions of Sections 99-37-1 through 99-37-23 to the holder of any check, draft or order for which payment has been refused.

(4) Upon conviction of any person for a violation of Section 97-19-55, when the prosecution of such person was commenced by the filing of a complaint with the court by the district attorney under the provisions of Section 97-19-79, the court shall, in addition to any other fine, fee, cost or penalty which may be imposed under this section or as otherwise provided by law, and in addition to any order as the court may enter under subsection (3) of this section requiring the offender to pay restitution under Sections 99-37-1 through 99-37-23, impose a fee in the amount up to eighty-five percent (85%) of the face amount of the check, draft or order for which the offender was convicted of drawing, making, issuing, uttering or delivering in violation of Section 97-19-55.

(5) It shall be the duty of the clerk or judicial officer of the court collecting the fees imposed under subsection (4) of this section to monthly deposit all such fees so collected with the State Treasurer, either directly or by other appropriate procedures, for deposit in the special fund of the State Treasury created under Section 99-19-32, known as the "Criminal Justice Fund."

(6) After the accused has complied with all terms of the statute and the complainant or victim has been paid, the district attorney's check unit may dispose of the accused's file after one (1) year has expired after the last audit.

(7) Persons convicted of violations of Section 97-19-55 shall be liable for all court costs involved including all filing fees and collection costs.

SECTION 2. Section 97-19-75, Mississippi Code of 1972, is amended as follows:

97-19-75. (1) The holder of any check, draft or order for the payment of money which has been made, drawn, issued, uttered or delivered in violation of Section 97-19-55, Mississippi Code of 1972, may, after complying with the provisions of Section 97-19-57, Mississippi Code of 1972, present a complaint to the district attorney. The complaint shall be accompanied by the original check, draft or order upon which the complaint is filed and the return receipt showing mailing of notice under Section 97-19-57, Mississippi Code of 1972. Not more than one (1) check, draft or order shall be included within a single complaint. Upon receipt of such complaint, the district attorney shall evaluate the complaint to determine whether or not the complaint is appropriate to be processed by the district attorney.

(2) If, after filing a complaint with the district attorney, the complainant wishes to withdraw the complaint for good cause, the complainant shall pay a fee of Thirty Dollars ($30.00) to the office of the district attorney for processing such complaint. Upon payment of the processing fee and withdrawal of the complaint, the district attorney shall return the original check, draft or order to the complainant.

(3) After approval of the complaint by the district attorney, a warrant may be issued by any judicial officer authorized by law to issue arrest warrants, and the warrant may be held by the district attorney. After issuance of a warrant or upon approval of a complaint by the district attorney, the district attorney shall issue a notice to the individual charged in the complaint, informing him that a warrant has been issued for his arrest or that a complaint has been received by the district attorney and that he may be eligible for deferred prosecution for a violation of Section 97-19-55, Mississippi Code of 1972, by voluntarily surrendering himself to the district attorney within ten (10) days, Saturdays, Sundays and legal holidays excepted, from receipt of the notice. Such notice shall be sent by United States mail.

(4) If the accused voluntarily surrenders himself within the time period as provided by subsection (3) of this section, the accused shall be presented with the complaint and/or warrant and prosecution of the accused may be deferred upon payment by the accused of a service charge in the amount of Forty Dollars ($40.00) to the district attorney and by execution of a restitution agreement as hereinafter provided.

(5) For the purposes of Sections 97-19-73 through 97-19-81, the term "restitution" shall mean and be defined as the face amount of any check, draft or order for the payment of money made, drawn, issued, uttered or delivered in violation of Section 97-19-55, Mississippi Code of 1972, plus a service charge payable to the complainant in the amount of Thirty Dollars ($30.00) and all court costs, filing fees and collection costs.

(6) After an accused has voluntarily surrendered himself and paid the service charge as provided by subsection (4) of this section, the district attorney may enter into a restitution agreement with the accused prescribing the terms by which the accused shall satisfy restitution to the district attorney on behalf of the complainant. The terms of such agreement shall be determined on a case-by-case basis by the district attorney, but the duration of any such agreement shall be no longer than a period of six (6) months. No interest shall be charged or collected on restitution monies. The restitution agreement shall be signed by the accused and approved by the district attorney before it is effective. If the accused does not honor each term of the restitution agreement signed by him, the accused may be proceeded against by prosecution under the provisions of Sections 97-19-55 through 97-19-69, Mississippi Code of 1972, and as provided by Section 97-19-79. If the accused makes restitution and pays all charges set out by statute or if the accused enters into a restitution agreement as set out above and honors all terms of such agreement, then if requested, the original check may be returned to the accused and a photocopy retained in the check file.

(7) If the holder of any check, draft or order for the payment of money presents to the district attorney satisfactory evidence that the original check, draft or order is unavailable and satisfactory evidence of the check, draft or order is presented in the form of bank records or a photographic copy of the instrument, whether from microfilm or otherwise, then the procedures provided for in this section may be followed in the absence of the original check, draft or order.

SECTION 3. This act shall take effect and be in force from and after July 1, 2005.