Could a Florida prosecutor choose between two bad-check statutes carrying different penalties?

Plain-English summary

In a November 2007 informal letter to a state representative, Florida's Attorney General's office said the state attorney chose whether to prosecute under section 832.04 or section 832.041 when a stopped-check transaction could fit both. The letter's conclusion was direct: "Ultimately, therefore, it is the state attorney’s decision as to whether an individual is prosecuted under section 832.04 or section 832.041, Florida Statutes."

At the time, section 832.04 made it a first-degree misdemeanor to stop payment with intent to defraud a farm-products producer for products worth at least $150. Section 832.041(1) made it a third-degree felony to stop payment with intent to defraud for goods or services worth at least $150. The letter noted that section 832.041(2) described the provision as cumulative and that both statutes had been amended together despite the different penalties.

Currency note

This opinion was issued in 2007. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Who chose the charge if both stopped-check statutes applied?
A: The letter said the state attorney made that choice. It cited Michael Crews v. State of Florida for prosecutorial discretion despite different penalties for the same act.

Q: What did the farm-products statute cover in 2007?
A: The letter described section 832.04 as covering a check stopped with intent to defraud a farm-products producer for products worth $150 or more, classified as a first-degree misdemeanor.

Q: What did the other stopped-check provision cover?
A: The letter described section 832.041(1) as covering stopping payment with intent to defraud for goods or services valued at $150 or more, classified as a third-degree felony.

Q: Did the AG identify an appellate case deciding which of these two statutes controlled?
A: No. The letter said it had found no appellate case addressing priority between sections 832.04 and 832.041 when the conduct could be prosecuted under either.

Background and statutory framework

The representative asked whether prosecutors had to charge under a particular statute when an act was described by more than one. The letter compared the two stopped-check provisions and their different penalties. It quoted section 832.041(2)'s instruction that the provision "shall be taken to be cumulative and shall not be construed to repeal any other statute now in effect." The office then relied on prosecutorial discretion and concluded the state attorney chose between the statutes for an overlapping case.

Citations and references

The letter cites sections 832.04 and 832.041, Florida Statutes, and Michael Crews v. State of Florida, 366 So. 2d 117 (Fla. 1st DCA 1979).

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/state-attorney-stopping-payment-of-a-check-
• Official print view: https://www.myfloridalegal.com/print/pdf/node/8277

Original opinion text

The Honorable Hugh H. Gibson, III

Representative, District 42

916 Avenida Central

The Villages, Florida 32159

Dear Representative Gibson:

Thank you for considering this office as a source for assistance in determining whether the state attorney is required to prosecute under a specific statute when the criminal activity is addressed in more than one statute. You raise the issue of prosecution under either section 832.04 or section 832.041, Florida Statutes, both of which address stopping payment of a check with intent to defraud.

Section 832.04, Florida Statutes, makes it a misdemeanor of the first degree for anyone, with the intent to defraud any producer of farm products, to stop payment on a check given to the producer for such products with a value of $150 or more. Section 832.041(1), Florida Statutes, makes it a felony of the third degree to stop payment of a check, with intent to defraud for the procurement of goods or services, if their value is $150 or more. Section 832.041(2), Florida Statutes, states that the section "shall be taken to be cumulative and shall not be construed to repeal any other statute now in effect." I would note that Section 832.04, Florida Statutes, was originally enacted in 1951, while section 832.041, Florida Statues, was enacted in 1965. Both were simultaneously amended by sections 979 and 980, Chapter 71-136, Laws of Florida, to reflect the dissimilar treatment for the procurement of goods with a value of $150 or more.

I have not found, nor have you directed my attention to, any appellate case that has addressed the application of either statute over the other in a situation where the criminal act could be prosecuted under either statute. It is well settled that the state attorney had absolute discretion in choosing the statute under which the crime will be prosecuted, despite the disparate penalties provided for the same act.[1]

Ultimately, therefore, it is the state attorney’s decision as to whether an individual is prosecuted under section 832.04 or section 832.041, Florida Statutes.

Sincerely,

Lagran Saunders

Assistant Attorney General

ALS/tsh

________________

[1] See Michael Crews v. State of Florida, 366 So. 2d 117 (Fla. 1st DCA 1979) (state attorney has absolute discretion whether to prosecute under a state statute or municipal ordinance; defendant has no constitutional right to elect which would be the basis of his indictment and prosecution).