Section 12-17-224

Special services division; worthless check unit; guidelines for processing worthless check complaints; fees and restitution; collection and distribution.

(a) Each district attorney may establish a special services division which shall be under the direction and control of the district attorney, and shall be organized for the following uses and purposes:

(1) A section of the special services division of each district attorney's office may be organized as a worthless check unit. Each district attorney who elects to establish the unit shall assign sufficient staff and resources to effectively operate the unit. The worthless check unit of the special services division of the district attorney's office shall be created for the purpose of processing worthless checks.

(2) Procedures:

a. COMPLAINT REFERRALS. After following the requisites of Section 13A-9-13.1, any party holding a worthless negotiable instrument may present a "complaint" to the worthless check unit of the special services division of the district attorney's office. Upon receipt of the complaint, the complaint shall be evaluated by the worthless check unit, under the direction of the district attorney, to determine whether or not the complaint is appropriate to be processed by the worthless check unit.

1. Guidelines to be used in the determination of whether a complaint has been appropriately filed may include, but are not limited to, the following:

(i) The amount of the check as recited in the complaint.

(ii) Whether the defendant has a prior criminal record of violations involving issuing worthless checks.

(iii) The number of checks previously received by the district attorney on this particular defendant.

(iv) Whether the defendant has any worthless check charges pending.

(v) The strength of the evidence of intent to defraud the victim.

2. Complaint withdrawals. If after filing a "complaint" with the worthless check unit the victim wishes to withdraw the complaint for good cause, the victim shall satisfy the service charge of thirty dollars ($30) to the worthless check unit for processing the complaint.

b. NOTICE. After approval of the complaint, a warrant may be issued by an appropriate warrant magistrate, and the warrant may be held by the worthless check unit. After issuance of a warrant or upon approval of a complaint by the worthless check unit, the unit shall notify the individual charged with violating Section 13A-9-13.1 by issuing a notice to the individual that a warrant has been issued for arrest or that a complaint has been received by the worthless check unit. The notice may be sent by mail. The notice shall inform the accused that he or she may be eligible for deferred prosecution for violation of Section 13A-9-13.1 by voluntarily surrendering to the worthless check unit within 10 business days from the date of the notice.

c. VOLUNTARY SURRENDER. Upon voluntary surrender, the accused may be presented with the warrant or complaint and prosecution of same may be deferred upon payment of restitution and the service charge for processing the check, to the worthless check unit. Upon election by the worthless check unit, the accused may sign a restitution agreement which shall contain the terms by which the restitution and the service charge may be paid.

d. NONSURRENDER. If, after receiving the notice, the accused shall not voluntarily surrender to the worthless check unit within the 10 business days prescribed in the notice, the violation shall be prosecuted in accordance with applicable laws and procedures.

e. FEES AND RESTITUTION.

1. Definitions.

(i) Fees. The worthless check unit of the special services division of the district attorney's office may charge a service charge in the stated amount in the following circumstances:

I. In those cases where the accused has been notified by mail that a warrant has been issued and may be criminally prosecuted unless the accused voluntarily surrenders to the worthless check unit within 10 business days from the date of the notice, and if an accused voluntarily surrenders pursuant to the notice within 10 business days, the worthless check unit may collect the sum of forty dollars ($40) from the accused as a service charge for processing the check. This service charge shall be increased in the same dollar amount as the court cost charged by the district court of the judicial circuit for violations of Section 13A-9-13.1 when the court cost shall be increased.

II. In those cases when the accused does not appear within 10 business days from the date of the notice issued to the accused, or if no restitution agreement is made, or if the accused does not comply with the restitution agreement, the case may be prosecuted in accordance with applicable laws and procedures. Upon appearance of the accused in the district or circuit court of the judicial circuit or the equivalent thereof and upon a finding of guilt or a plea of guilty, the court shall order the accused to satisfy an additional service charge equal to 85% of the court cost levied by the court for the offense. This amount shall not be in lieu of, but shall be in addition to, court costs assessed by the district or circuit court for the violation. Further, the service charge is to be paid to the general fund of the county to be disbursed pursuant to this section and shall not decrease any amounts allotted to any county or state agency from the court costs collected by the district or circuit court.

(ii) Restitution. Restitution shall be defined as the face amount of any negotiable instrument, in the event of the issuance of a forged or altered instrument, restitution shall be in the amount to which the instrument was changed or altered, plus any amounts the victim may have been required to pay to a bank as a result of having attempted to process the worthless instrument and the service charge authorized by Sections 13A-9-13.1 through 13A-9-13.3 for the holder of a worthless check.

I. Upon filing a complaint with the worthless check unit, the victim waives the right to collect restitution directly from the defendant.

II. Restitution agreements. After an accused has been sent notification by mail of the warrant issued for arrest and upon voluntarily surrendering to the worthless check unit, the worthless check unit may enter into a restitution agreement with the accused as to the terms by which the accused shall satisfy restitution and fees to the worthless check unit. The terms of the restitution agreements shall be determined on a case by case basis by the worthless check unit, but the duration of any agreement shall be no longer than a period of six months. No interest may be charged or collected on either restitution or fees charged. The restitution agreement shall be signed by the accused and shall be ratified by the worthless check unit before it is effective. If the accused does not honor each term of the signed restitution agreement, the district attorney's office may proceed with the prosecution of the accused as provided by law.

2. COLLECTION AND DISTRIBUTION.

(i) Restitution. Restitution shall be collected by the worthless check unit and deposited into an account maintained solely for that purpose. The worthless check unit shall, after a reasonable time for accounting and bookkeeping purposes, disburse to the victim all restitution collected with regard to the original complaint filed.

(ii) If the victim cannot be located after a reasonable time and diligent efforts, the restitution due the victim shall be deposited into the worthless check fund as herein provided.

(iii) Fees. All fees or charges, other than court costs, collected by the worthless check unit in accordance with this section shall be paid to the county treasurer of the county in a fund to be known as the Worthless Check Fund. Sixty-five percent of funds collected pursuant to subsection (a)(2)e1(i)I of this section shall be used and expended by the district attorney to defray the reasonable expenses incurred by the office of the district attorney. The district attorney may requisition and expend these funds for those purposes. The treasurer of the county shall make disbursements of the funds upon requisition of the district attorney. Provided further, this paragraph shall not reduce the amount payable to the district attorney under any local act, specifically Act No. 83-483. Thirty-five percent of the funds shall be used by the county for the reasonable expenses incurred in the administration of the program. All of the funds collected pursuant to subsections (a)(2)e1(i)II and (a)(2)e1(ii) shall be deposited in the general fund of the county and shall be expended only for the reasonable and necessary expenses of law enforcement.

(b) This section shall in no way prohibit or preclude the office of the district attorney from proceeding with the prosecution of any violation of Section 13A-9-13.1 as provided by applicable law and procedures heretofore enacted.

(Acts 1984, 1st Ex. Sess., No. 84-704, p. 35; Acts 1987, No. 87-565, p. 882; Acts 1989, No. 89-807, p. 1608, §1; Acts 1991, No. 91-319, p. 578, §1; Acts 1997, No. 97-413, p. 679, §1.)