State v. Havens, 98-1468

• Decision Date: 25 March 1999
• Docket Number: No. 98-1468,98-1468
• Citation: 337 Ark. 161,987 S.W.2d 686
• Parties: STATE of Arkansas, Appellant, v. Billy Wayne HAVENS, Appellee.
• Court: Arkansas Supreme Court

Page 686

987 S.W.2d 686

337 Ark. 161

STATE of Arkansas, Appellant, v. Billy Wayne HAVENS, Appellee.

No. 98-1468.

Supreme Court of Arkansas.

March 25, 1999.

Mark Pryor, Attorney General, Brad Newman, Assistant Attorney General, Little Rock, for Appellant.

Marianne L. Hudson, Fayetteville, for Appellee.

RAY THORNTON, Justice.

Appellant State of Arkansas appeals the judgment of the Washington County Circuit Court dismissing charges against appellee Billy Wayne Havens for violation of the Arkansas Hot Check Laws. The trial judge granted appellee's motion to dismiss the charges against him on the grounds that he had not received notice of the dishonor of his checks pursuant to Ark.Code Ann. § 5-37-303 (Repl.1997). On appeal, the State argues that the trial court erred in reading compliance with the notice provisions as a prerequisite to the filing of criminal charges. This case was certified to us by the Arkansas Court of Appeals, pursuant to Ark. Sup.Ct. R. 1-2(d), because it presents an issue of first impression. We find merit to the State's argument and reverse.

On September 21, 1998, an amended information was filed by the Washington County prosecutor's office charging appellee as a habitual offender for drawing several checks aggregating several hundred dollars between December 18, 1997, and February 1, 1998, knowing at the time that he had insufficient funds on deposit to cover the checks and with the intent to defraud a company out of its property, in violation of Ark.Code Ann. § 5-37-302 (Repl.1997). At a pretrial hearing held September 21, 1998, appellee orally moved to dismiss the charges against him because he did not receive notice pursuant to Ark.Code Ann. § 5-37-303.

The prosecutor contended that nothing in the statute requires the merchant's giving notice of the dishonor as a prerequisite to prosecution, that the law does not require dismissal of the charges for failure to provide notice, and that Ark.Code Ann. § 5-37-304(a)(2)(B), which provides: "Nothing shall impair the prosecuting attorney's power to immediately file charges after the check has been returned," controls the filing of the information against appellee. According to the State's interpretation, the purpose of the notice provision is to allow the State to use the evidence of failure to pay as prima facie evidence of intent to defraud. Arkansas Code Section 5-37-304 provides that it is prima facie evidence of intent to defraud if: "Payment was refused by the drawee for lack of funds, upon presentation within thirty (30) days after delivery, and the maker or drawer shall not have paid the holder the amount due, together with a service charge not to exceed twenty dollars ($20.00), within ten (10) days after receiving written notice that payment was refused upon the check, draft, or order." Ark.Code Ann. § 5-37-304(a)(2)(A)(ii)(Repl.1997). Appellee claimed that sending notice was a prerequisite to the bringing of a criminal prosecution for violation of the Arkansas Hot Check Law, and that the remedy for failure to give such notice by registered mail, return receipt requested, in substantially the form set out in the code, should be dismissal of the charges.

The trial judge agreed with appellee's contention and dismissed the charges against appellee, ruling that the language of Ark.Code Ann. § 5-37-303 required that the notice be sent to the defendant as a condition precedent to conviction for violation of the Arkansas Hot Check Law. The State brings this appeal of the trial court's ruling, arguing that the trial court erred in dismissing the charges against appellee by finding that the notice provision was a condition precedent to a prosecution under the Arkansas Hot Check Law. Resolution of this issue necessarily requires our construction of the Arkansas Hot Check Law, which is codified at Ark.Code Ann. §§ 5-37-301--5-37-307 (Repl.1997).

We adhere to the basic rule of statutory construction, which is to give effect to the intent of the legislature. In determining the meaning of a statute, the first rule is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. If the language of a statute is plain and unambiguous, and conveys a clear and definite meaning, there is no occasion for resorting to rules of statutory interpretation. State Office of Child Support Enforcem't v. Terry, 336 Ark. 310, 985 S.W.2d 711 (1999).

Section 5-37-303, the "Notice" provisions of the Arkansas Hot Check Law, provides in part:

(a) For purposes of this section and § 5-37-304, notice that payment was refused by the drawee for lack of funds shall be sent by certified or registered mail, evidenced by return receipt, to the address printed on the instrument or given at the time of issuance, or to the current residence.

(b) The form of the notice shall be substantially as follows: "You are hereby notified that the check(s) or instrument(s) listed below (has) (have) been dishonored. Pursuant to Arkansas law, you have ten (10) days from receipt of this notice to tender payment of the total amount of the check(s) or instrument(s), plus the applicable service charge(s) of $ _______ (not to exceed $20.00 per check), the total amount due being $ _________. Unless this amount is paid in full within the time specified above, the dishonored check(s) or instrument(s) and all other available information relating to this incident may be turned over to the Prosecuting Attorney for criminal prosecution ..."

Ark.Code Ann. § 5-37-303 (Repl.1997).

The section immediately following provides:

(a) For purposes of this section, it is prima facie evidence that the maker or drawer intended to defraud and knew at the time of the making, drawing, uttering, or delivering that the check, draft, or order would not be honored if:

(1) The maker or drawer had no account with the drawee at the time the check, draft, or order was made, drawn, uttered, or delivered; or

(2)(A)(i) The check, draft, or order bears the endorsement or stamp of a collecting bank indicating that the instrument was returned because of insufficient funds to cover the value; or

(ii) Payment was refused by the drawee for lack of funds, upon presentation within thirty (30) days after delivery, and the maker or drawer shall not have paid the holder the amount due, together with a service charge not to exceed twenty dollars ($20.00), within ten (10) days after receiving written notice that payment was refused upon the check, draft, or order.

(B) Nothing shall impair the prosecuting attorney's power to immediately file charges after the check has been returned. The prosecuting attorney may collect restitution including a service charge, not exceeding twenty dollars ($20.00) per check, for the payees of the check.

Ark.Code Ann. § 5-37-304 (Repl.1997).

On review of an issue of statutory interpretation, we are not bound by the decision of the circuit court. However, in the absence of a showing that the trial court erred in its interpretation of the law, that interpretation will be accepted as correct on appeal. Bryant v. Weiss, 335 Ark. 534, 983 S.W.2d 902 (1998)(citing Hazen v. City of Booneville, 260 Ark. 871, 545 S.W.2d 614 (1977)). In the present case the trial judge found that, despite the plain language of Ark.Code Ann. § 5-37-304(a)(2)(B) that nothing shall impair the prosecutor's power to immediately file charges after the check has been returned, section 5-37-303 required that in order to obtain a judgment of conviction in a proceeding for violation of the Arkansas Hot Check Law, it was necessary for the State or the payee to provide notice of the check's return to the drawer and to give the drawer ten days to tender payment of the check and appropriate fees.

We disagree with the trial court's decision for two reasons. First, the plain language of section 5-37-304, which outlines the various methods by which the State can make a prima facie case of violation of the Arkansas Hot Check Law, states that it is prima facie evidence of intent to defraud and knowledge that the check would be...