Is it illegal to post-date a check?

Postdating a check refers to writing a check but putting a future date on the check instead of the date that the person writes the check. People typically postdate checks intending that the recipient not deposit or cash the check until a later date, because payment is not due until that later date. For example, someone might mail a check for a utility bill before payment is due, and put the bill's due date (not the date the check is being written) on the check.

Another common scenario occurs where a check recipient agrees to accept a postdated check in exchange for goods or services, even though the maker of the check has informed the recipient that the checking account will not contain adequate funds to cover the check until the date used on the check. Upon receiving a postdated check, the recipient (such as a merchant or wholesaler) will provide the goods or services. But, what if the recipient attempts to cash the postdated check at the future date, but the check bounces? Has a crime been committed?

Postdated Checks & Criminal Law

A person writing a postdated check may violate the law if the check is returned by the bank to the recipient because the maker's account does not have the funds on deposit necessary to cover the check. Although worthless check laws can vary somewhat from one state to another, all states make it illegal for a person to write a worthless check with the intent to defraud a person or business of goods or services. The maker of the postdated check must have the intent to defraud at the time of writing the postdated check. Therefore, a defendant who writes a postdated check that is returned because of insufficient funds will not be convicted of writing a worthless check unless the prosecutor is able to prove that the defendant wrote the postdated check with the purpose of defrauding the recipient or with the knowledge that the check would not be honored at the later date used on the check.

("Postdated Checks: An Old Problem with a New Solution in the Revised U.C.C.," 14 U. Ark. Little Rock L.J. 37;Young v. State, Ga. App. 425 (2004)).

Proving Criminal Intent

How can a prosecutor win a guilty verdict if the prosecutor must prove that the defendant had the intent to defraud the recipient of the postdated check? In some cases, direct evidence may exist that proves that the defendant wrote the postdated check with the intent to cheat the recipient out of goods or services. For example, at trial, a witness might recount a defendant's statement made to the witness admitting that the defendant wrote the victim a worthless check in order to get the victim to provide the defendant something of value. In such cases, the defendant's admission, if believed, would provide the required proof of the defendant's criminal intent to defraud the victim with a postdated check.

What about cases involving postdated checks where direct evidence of the defendant's knowledge or intent to defraud does not exist? Typical worthless check laws are written so that the criminal intent requirement necessary for a conviction is satisfied if the prosecutor proves the existence of one or more conditions or facts specified by the statute. For example, under Georgia's deposit account fraud statute, the defendant is presumed to have written the check with the knowledge it would bounce if:

• the defendant did not have an account with the bank that the check was drawn on at the time the check was written
• within 30 days of receiving the check, the recipient presented the check for cash or deposit but the bank did not honor the check because of insufficient funds, and the defendant failed to make good on the check within 10 days of receiving written notice that the check had bounced, or
• notice mailed by certified or registered mail or statutory overnight delivery is returned to the sender as undeliverable and the notice was mailed to the address on the check within 90 days of being dishonored by the bank.

The fact that a postdated check is not honored because of insufficient funds does not, by itself, establish that the maker of the check committed a crime; the prosecutor must prove that the defendant had the intent to defraud at the time of writing the worthless check. Under Georgia law, proof of any of the above-listed conditions will satisfy the intent element of the crime that is necessary for a conviction.

Other states have laws that similarly allow a judge or jury to presume that the defendant had the intent to defraud with a worthless check if certain facts are proven. For example, Maine law allows the presumption of the intent to defraud with a bad check where the writer of the check fails to make good on the bad check within five days of receiving notice that the check bounced; the same statute also presumes intent where the defendant does not have an account with the bank that the check is drawn on at the time the defendant writes the check.

(Ga. Code § 16-9-20; Me. Rev. Stat. 17-A-708).

Criminal Penalties

Punishment for committing check fraud, including fraud committed with a postdated check, can vary from state to state, but the laws typically authorize fines, probation, and even imprisonment. A defendant also will have to make restitution to the victim for goods or services received with the bad check.

In many states, the severity of the crime is determined by the dollar amount of the worthless check or checks. For example, in Colorado, a conviction for writing a bad check for $500 or less (or two or more bad checks within a 60-day period that total less than $500) is punished as a Class 2 misdemeanor, a single check for (or two or more bad checks written totaling) $500 or more but less than $1,000 is considered a Class 1 misdemeanor, and a single check (or two or more checks written within 60 days that total) over $1,000 is punished as a Class 6 felony. Class 2 misdemeanors carry up to 12 months in jail and a $1,000 fine, while Class 1 misdemeanors carry a maximum of 18 months in jail and a $5,000 fine. A Class 6 felony carries also carries a minimum of a year and a maximum of 18 months in prison and a fine.

In Tennessee, a bad check for less than $500 is a Class A misdemeanor, while a check for $500 or more is classified as one of five degrees of felonies depending on the check amount. Checks for $500 or greater but less than $1,000 are considered Class E felonies, which carry up to six years in prison and a $3,000 fine, while the most serious felony designation, Class A, is reserved for checks of $250,000 or more. Conviction for a Class A felony carries a maximum of 60 years in prison and a $50,000 fine.

In addition to criminal penalties, state laws authorize civil fines for writing bad checks.

(Colo. Rev. Stat. § § 18-1.3-401, 18-1.3-501, 18-5-205; Tenn. Code § § 39-14-105, 39-14-121, 40-35-111)