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B.
Fraudulent Checks

1. Generally

S.C. Code Ann. §34-11-60 concerns the drawing and uttering of fraudulent checks. The following elements are necessary for a check to be considered fraudulent:

1. That the accused did make, draw, utter, issue, or deliver a check, draft, or order.

2. That the check was drawn or delivered with the intent to defraud.

3. That the accused did receive for the check either (a) money, (b) goods, (c) services, (d) credit, (e) anything of value, or (f) the check was used to pay rent or make a payment on a lease agreement. Goods are the wares of a merchant and any other kind or property. Credit will sustain a charge under this law if the credit is obtained through securing further advances of money, goods, or services by payment by check, draft or order, of a existing account, in whole or in part. Effective June 11, 1999, credit as defined in Section 34-11-60(d) applies to a check given in full or partial payment of any preexisting debt.

4. That the check, draft, or order was not paid by the drawee (bank) for any one of the following reasons:
(a) at the time the check was written, the person who wrote it:
  (1) did not have an account in the bank named on the check, or
  (2) did not have sufficient funds deposited in the bank named on the check to pay it, or
  (3) put an incorrect or insufficient signature on the check.

Note: This section also makes it unlawful for anyone to aid or encourage another to write a check which he has reasonable cause to believe will be dishonored by the bank based on insufficient funds or no account.

2. Inapplicability of Statute

§34-11-60 does not apply (1) to any check where the payee knows, has been expressly notified or has reason to believe that the drawer did not have an account or have on deposit with the drawee (bank) sufficient funds to insure payment; or (2) to any check which has not been deposited to an account of the payee within 10 days from the date such check was presented to the payee; (3) to any check that was uttered more than 180 days prior to the issuance of a warrant.

PLEASE NOTE:

§ 34-11-60(d) provides ". . . [t]his section applies to a check given in full or partial payment of any preexisting debt . . ."

Payment for meals, lodging, or other goods or services at any hotel, motel, or other hostelry by check at any time prior to or upon departure or checkout is credit as used in Section 34-11-60(d).

3. Prima Facie Evidence

a. Identity

A party who accepts a check can establish prima facie evidence of the identity of the party issuing the check. To do so, he must obtain:

(1) full name of person presenting the check,

(2) residence address (business address only if the check is issued by a business), and

(3) home telephone number.

The party who receives the check may either record this information on the check, or he may note on the check the number of a check-cashing identification card which has been issued by the receiving party, such card containing the information required above, and placed on file by the receiving party. [§34-11-60(b)(1)]. This receiving party must initial the check to acknowledge that he or she witnessed the signing of such check. If the bank validates the check, this will constitute compliance with the initialing requirement.

b. Making or Uttering of Check, Proper Presentation to Drawee Bank for Payment, and Proper Dishonor

If the drawee bank (the bank on which the check is drawn) writes or stamps on the check (or on a paper attached to the check) the reason why the check is dishonored, this establishes prima facie evidence, 1) of the making or uttering of the check, 2) of the proper presentation to the drawee bank for payment, 3) of the dishonor of the check, and 4) that the check was properly dishonored for the reason written or stamped on the check. [§34-11-60(c)].

c. Knowledge of Insufficient Funds

Prima facie evidence that the drawer (the person who wrote the check) knew there were insufficient funds on deposit with the drawee bank can be established by showing:

(1) that the check was issued, and payment was refused, or

(2) that the drawee withdrew funds from the account with the drawee bank within 10 days following the issuance of the check. [§34-11-60(c)].

d. Fraudulent Intent

To establish prima facie evidence of fraudulent intent on the part of the drawer of the check, the party who received the check must show the following:

(1) that the check was dishonored by the drawee bank,

(2) that he sent, by certified mail, a notice containing substantially the information set out in the sample form in §34-11-70(a) (1) to the drawer at the address on the check or check-cashing card, and

(3) that 10 days after mailing such notice, he had not received from the drawer, the amount of the check, plus a $30 service charge. Prior to June 3, 2002, the service charge for checks $100 or less was changed from $25 to $30, making the service charge on all checks $30. [§34-11-70(a) (3)].

If the party instituting prosecution can establish the matters set out in (a) through (d) above, he will have created an inference that the defendant issued a fraudulent check. If the defendant presents no evidence or argument in his own defense, then he should be found guilty of making, uttering, or drawing a fraudulent check.

4. Stopping Payment with Intend to Defraud

S. C. Code Ann. §34-11-80 concerns stopping payment on a check, draft or order with intent to defraud. It is unlawful for anyone with intent to defraud to stop payment on a check which has been given to obtain money, credit, goods or services; provided, that such money, goods, credit or services were as represented at the time the check was issued. This section does not apply to a postdated check or to a check which the payee knew was bad.

5. Instructions for Magistrates

a. Magistrate's Information to Complainants

(1) The magistrate should be sure that the complainant has sent the required notice to the person who wrote the check, giving him 10 days in which to pay the amount owed and the $30.00 service charge.

(2) A certificate by the payee that such notice has been sent and payment has not been made should be required before a magistrate issues a criminal warrant.

(3) Magistrates should inform the complainant that (1) he will be required to appear in court as a witness for the prosecution when the accused person is tried; and (2) he will be held liable for costs not to exceed $41 in the event the case is dismissed for want of prosecution; and (3) in the event the defendant makes full restitution (directly to the complainant) the complainant must notify the court (orally or otherwise) at least 24 hours prior to the time set for trial of such restitution in order to be relieved of the responsibility of prosecution.

b. Dismissals (Before Trial)

S.C. Code Ann. §34-11-70 permits the magistrate to dismiss fraudulent check cases prior to trial under certain conditions.

(1) If the party applying for the warrant notifies the court at least 24 hours prior to trial and pays the administrative cost, the magistrate may dismiss the case, §34-11-70(b), or

(2) If the defendant satisfactorily proves that restitution has been made and pays the administrative cost, the magistrate may dismiss the case, §34-11-70(c).

6. Magistrates' Jurisdiction and Sentencing

a. Magistrates have authority to try cases involving fraudulent checks where the amount involved is $1,000 or less. (§34-11-90). In addition, a magistrate shall have the power to sentence any person to consecutive terms of imprisonment totaling more than 90 days. See §22-3-550.

Reminder: Be certain to determine whether each fraudulent check prosecution is a first offense or a second or subsequent offense.

b. If the amount of the check is more than $1,000, magistrates may issue an arrest warrant and hold a preliminary examination, but may not try the case.

c. Convictions for writing bad checks of $1,000 or less are punishable as follows:

(1) for a first conviction, if the amount of the instrument is five hundred dollars or less, by a fine of not less than fifty dollars nor more than two hundred dollars or by imprisonment for not more than thirty days;

(2) for a first conviction, if the amount of the instrument is more than five hundred dollars but not greater than one thousand dollars, by a fine of not less than three hundred nor more than five hundred dollars or by imprisonment for not more than thirty days, or both;

(3) for a second or subsequent conviction, if the amount of the instrument is five hundred dollars or less, by a fine of two hundred dollars or by imprisonment for not more than thirty days;

(4) for a second or subsequent conviction, if the amount of the instrument is more than five hundred dollars but not greater than one thousand dollars, by a fine of not more than five hundred dollars or by imprisonment for not more than thirty days, or both.

d. Convictions in the court of general sessions or any other court having concurrent jurisdiction are punishable as follows: for a first conviction by a fine of not less than $300 nor more than $1000 or by imprisonment for not more than 2 years, or both; and for a second or subsequent conviction by a fine of not less $500 nor more than $2000 and imprisonment for not less than 30 days nor more than 10 years.

NOTE: Suspension of sentence for first offense conviction is mandatory, "upon a showing of satisfactory proof of restitution and payment by the defendant of all reasonable court costs accruing not to exceed $41." [§34-11-90(c)]. In addition, §34-11-90(d) requires payment of reasonable court costs not to exceed $41, and a service charge of $30 provided for in §34-11-70(a), after any conviction for writing bad checks, when the defendant is charged or fined.

Second and Subsequent Offenses - Suspension of the sentence is discretionary with the court. (See §22-3-800.)

e. §34-11-95 requires that all convictions for violations of §34-11-60 must be reported to the Communications and Records Division of SLED.

7. Municipal Court Jurisdiction and Sentencing

A municipal court is authorized to try fraudulent check cases only if the municipal governing body has passed an ordinance adopting by reference the provisions of Chapter 11 of Title 34, causing violations of those statutory provisions to be violations of the municipal ordinances. If the municipality has such an ordinance, the municipal court has the same jurisdiction and sentencing power as the magistrate courts. (§34-11-90).