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SPONSOR: |
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DATE TYPED: |
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HB |
407 |
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SHORT TITLE: |
Felony Amount for Writing Bad Checks |
SB |
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ANALYST: |
Fox-Young |
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APPROPRIATION
Appropriation
Contained |
Estimated
Additional Impact |
Recurring or
Non-Rec |
Fund Affected |
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FY03 |
FY04 |
FY03 |
FY04 |
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.1 Minimal |
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(Parenthesis
( ) Indicate Expenditure Decreases)
Responses
Received From
Corrections
Department (CD)
Public
Defender Department (PDD)
Administrative
Office of the Courts (AOC)
Attorney
General (AG)
SUMMARY
Synopsis
of Bill
House Bill 407 amends
NMSA 1978, § 30-36-5, increasing the dollar amount for writing a bad check
before it becomes a felony offense. The
bill increases the amount from $25 to $250.
Significant
Issues
The Public Defender Department (PDD) references State
v. Ball, in which the NM Court of Appeals held that the language of the
current statute is unconstitutionally vague.
The court interpreted the language “when the amount of the check, draft
or order, or the total amount of the checks, drafts or orders…," to mean
that a separate punishment shall be imposed for each worthless check
issued. PDD notes that if the Legislature
amends the dollar amount in the statute without clarifying the aforementioned
language, the court may presume that the Legislature intended each check to
result in a separate conviction. If, as
a matter of policy, the Legislature intends that offenders be punished
separately for the issuance of each worthless check, the statutory language
requires clarification to that end. (SEE TECHNICAL ISSUES)
The Administrative Office of the
Courts (AOC) notes that the bill may prompt a slight shift in costs from
district courts to magistrate and metropolitan courts.
The Corrections Department (CD) anticipates a
small decrease in recurring costs and revenues, as fewer offenders are likely
to be incarcerated or to pay parole and probation supervision fees and fines.
TECHNICAL ISSUES
PDD suggests the following amendments:
If
the Legislature intends that in cases involving multiple checks, drafts or
orders, offenders be punished for a single offense and the punishment be
based on the total amount of those checks, PDD recommends the following
changes:
A. When [the amount of the check, draft or
order, or] the total amount of the checks, drafts or orders, [are] is
for more than one dollar ($ 1.00) but less than [twenty-five dollars ($
25.00),] two hundred and fifty dollars, the person shall be sentenced to
imprisonment in the county jail for a term of not more than thirty [30] days or
a fine of not more than one hundred dollars ($100), or both such imprisonment
and fine.
B. When [the amount of the check, draft or
order, or] the total amount of the checks, drafts or orders, [are] is
for more than [twenty-five dollars ($ 25.00),] two hundred and fifty
dollars, the person shall be sentenced to imprisonment in the penitentiary
for a term of not less than one [1] year nor more than three [3] years or the
payment of a fine of not more than one thousand dollars ($ 1,000) or both such
imprisonment and fine.
If
the Legislature intends that offenders be punished for multiple offenses,
PDD recommends language similar to that recently added to the
embezzlement statute: “Each separate
incident of embezzlement or conversion constitutes a separate and distinct
offense.” NMSA 1978, § 30-16-8 (2002).
The Attorney General (AG) references State v. Muzio, in which the NM Court of Appeals held
that because the minimum sentence imposed for issuing worthless checks is less
than that stated for a fourth degree felony under § 31-18-15 (A) and (D)(3),
i.e., a conviction under § 30-36-5 constitutes a felony, but not a fourth
degree felony. The court reasoned as
follows: § 30-1-6 states that a crime is a felony if it is so designated by
law, or if upon conviction thereof a sentence of death or of imprisonment for a
term of one year or more is authorized.
§30-36-5 authorizes a term of imprisonment of one year of more and is
therefore a felony; however, §
The AG recommends an amendment clarifying that
issuing bad checks, drafts or orders for which the total amount exceeds $250 is
a felony. This could be done by inserting
the “the offense shall be a felony, and ” in paragraph B before the phrase, “a
person shall be sentenced to.”
JCF/njw