House Bill 272

AN ACT TO AMEND SECTIONS 97-19-55, 97-19-57, 97-19-61, 97-19-62, 97-19-63, 97-19-65, 97-19-67 AND 97-19-69, MISSISSIPPI CODE OF 1972, TO INCLUDE ELECTRONIC FUND TRANSFERS IN THE BAD CHECK LAW; AND FOR RELATED PURPOSES.

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

SECTION 1. Section 97-19-55, Mississippi Code of 1972, is amended as follows:

97-19-55. (1) It shall be unlawful for any person with fraudulent intent:

(a) To make, draw, issue, utter or deliver any check, draft or order, or electronic fund transfer to obtain money, delivery of other valuable property, services, the use of property or credit extended by any licensed gaming establishment drawn on any real or fictitious bank, corporation, firm or person, knowing at the time of making, drawing, issuing, uttering or delivering said check, draft or order, or electronic fund transfer that the maker or drawer has not sufficient funds in or on deposit with such bank, corporation, firm or person for the payment of such check, draft or order in full, and all other checks, drafts or orders, or electronic fund transfers upon such funds then outstanding;

(b) To close an account without leaving sufficient funds to cover all outstanding checks written on such account.

(2) For purposes of Sections 97-19-55 through 97-19-69:

(a) "Check" includes a casino marker issued to any licensed gaming establishment. "Check" shall also include any and all electronic funds transfer of EFT.

(b) "Credit" means an arrangement or understanding with a bank, corporation, firm or person for the payment of a check or other instrument.

SECTION 2. Section 97-19-57, Mississippi Code of 1972, is amended as follows:

97-19-57. (1) As against the maker or drawer thereof, the making, drawing, issuing, uttering or delivering of a check, draft or order, or electronic fund transfer, payment of which is refused by the drawee, shall be prima facie evidence and create a presumption of intent to defraud and of knowledge of insufficient funds in, or on deposit with, such bank, corporation, firm or person, provided such maker or drawer shall not have paid the holder thereof the amount due thereon, together with a service charge of Forty Dollars ($40.00), within fifteen (15) days after receiving notice that such check, draft or order has not been paid by the drawee.

(2) For purposes of Section 11-7-12, the form of the notice provided for in subsection (1) of this section shall be sent by regular mail and shall be substantially as follows: "This statutory notice is provided pursuant to Section 97-19-57, Mississippi Code of 1972. You are hereby notified that a check, draft or order, or electronic fund transfer numbered _____, apparently issued by you on _____ (date), drawn upon _____ (name of bank), and payable to _____, has been dishonored. Pursuant to Mississippi law, you have fifteen (15) days from receipt of this notice to tender payment of the full amount of such check, draft or order, or electronic fund transfer plus a service charge of Forty Dollars ($40.00), the total amount due being $_____. Failure to pay this amount in full within the time specified above shall be prima facie evidence of and create a presumption of both the intent to defraud and the knowledge of insufficient funds in, or on deposit with, such bank in violation of Section 97-19-55."

(3) For purposes of Section 97-19-67, the form of the notice provided for in subsection (1) of this section shall be sent by regular mail, supported by an affidavit of service by mailing, and shall be substantially as follows: "This statutory notice is provided pursuant to Section 97-19-57, Mississippi Code of 1972. You are hereby notified that a check, draft or order, or electronic fund transfer numbered _____, apparently issued by you on _____ (date), drawn upon _____ (name of bank), and payable to _____, has been dishonored. Pursuant to Mississippi law, you have fifteen (15) days from receipt of this notice to tender payment of the full amount of such check, draft or order, or electronic fund transfer plus a service charge of Forty Dollars ($40.00), the total amount due being $_____. Unless this amount is paid in full within the time specified above, the holder may assume that you delivered the instrument with intent to defraud and may turn over the dishonored instrument and all other available information relating to this incident to the proper authorities for criminal prosecution."

(4) If any notice is returned undelivered to the sender after such notice was mailed to the address printed on the check, draft or order, or to the address given by the accused at the time of issuance of the instrument, such return shall be prima facie evidence of the maker's or drawer's intent to defraud.

(5) Affidavit of service by mail shall be adequate if made in substantially the following form:

"STATE OF ____________

COUNTY OF ____________

________________, being first duly sworn on oath, deposes and states that he/she is at least eighteen (18) years of age and that on (date)______________, 2___, he/she served the attached Notice of Dishonor by placing a true and correct copy thereof securely enclosed in an envelope addressed as follows:

______________________________

and deposited the same, postage prepaid, in the United States mail at ________________________, __________________________.

__________________________________

(signature)

Subscribed to and sworn before me, this the ________ day of _____________________, 2___.

_________________________________

(Notary Public)

My commission expires:

(SEAL)"

(6) Without in any way limiting the provisions of this section, this section shall apply to a draft for the payment of money given for a motor vehicle even if such payment is conditioned upon delivery of documents necessary for transfer of a valid title to the purchaser.

SECTION 3. Section 97-19-61, Mississippi Code of 1972, is amended as follows:

97-19-61. Such notice as is provided for in Section 97-19-57 is dispensed with: (a) in the event the situs of the drawee is not in the State of Mississippi; (b) if the drawer is not a resident of the State of Mississippi or has left the State of Mississippi at the time such check, draft or order, or electronic fund transfer is dishonored; or (c) if the drawer of such check, draft or order did not have an account with the drawee of such check, draft or order, or electronic fund transfer at the time the same was issued or dishonored, or payment of the check is denied because the account was closed at the time the check, draft or order, or electronic fund transfer was issued or dishonored.

SECTION 4. Section 97-19-62, Mississippi Code of 1972, is amended as follows:

97-19-62. (1) In any prosecution or action under the provisions of Section 97-19-55, a check, draft or order, or electronic fund transfer for which the information required in subsections (2) and (3) of this section is available at the time of issuance, utterance or delivery shall constitute prima facie evidence of the identity of the party issuing, uttering or delivering the check, draft or order, or electronic fund transfer and that such person was a party authorized to draw upon the named account.

(2) To establish prima facie evidence of the identity of the party presenting such check, draft or order, or electronic fund transfer, the following information regarding such identity shall be requested by the party receiving such instrument: The presenter's name, residence address and home phone number. Such information may be provided in the following manner:

(a) The information may be recorded upon the check, draft or order, or electronic fund transfer itself; or

(b) The number of a check-cashing identification card issued by the receiving party may be recorded on the check, draft or order. Such check-cashing identification card shall be issued only after the information required in this subsection has been placed on file by the receiving party.

(3) In addition to the information required in subsection (2) of this section, the party receiving the check, draft or order, or electronic fund transfer shall witness the signature or endorsement of the party presenting such instrument and, as evidence of such, the receiving party shall initial the instrument.

SECTION 5. Section 97-19-63, Mississippi Code of 1972, is amended as follows:

97-19-63. It shall be the duty of the drawee of any check, draft or other order, or electronic fund transfer for the payment of money, before refusing to pay the same to the holder thereof upon presentation, to cause to be written, printed, or stamped in plain language thereon or attached thereto, the reason for drawee's dishonor or refusal of the same. In all prosecutions under Sections 97-19-55 through 97-19-69, the introduction in evidence of any unpaid and dishonored check, draft or other order for the payment of money, having the drawee's refusal to pay stamped or written thereon or attached thereto, with the reason therefor as aforesaid, shall be prima facie evidence of the making or uttering of said check, draft or other order, or electronic fund transfer for the payment of money and the dishonor thereof, and that the same was properly dishonored for the reasons written, stamped or attached by the drawee on such dishonored check, draft or other such order, or electronic fund transfer for the payment of money.

SECTION 6. Section 97-19-65, Mississippi Code of 1972, is amended as follows:

97-19-65. Each making, drawing, issuing, uttering or delivering of any such check, draft or order, or electronic fund transfer as aforesaid shall constitute a separate offense.

SECTION 7. 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, or electronic fund transfer 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, or electronic fund transfer 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, or electronic fund transfer 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, or electronic fund transfer 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.

(2) Where the conviction was based on a worthless check, draft or order, or electronic fund transfer 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~~ subsection (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 may, in its discretion, 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, or electronic fund transfer 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, or electronic fund transfer 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.

SECTION 8. Section 97-19-69, Mississippi Code of 1972, is amended as follows:

97-19-69. In the event of the existence of prima facie evidence of fraudulent intent as defined in Section 97-19-57 and the giving of notice under Section 97-19-57, if required, any person, firm or corporation causing the arrest of the drawer of such check, draft or order, or electronic fund transfer shall not be criminally or civilly liable for false arrest or false imprisonment.

SECTION 9. This act shall take effect and be in force from and after July 1, 2015.