State v. Kravit , 12 Fla. L. Weekly 1547 ( 1987 )

ANSTEAD, Judge,

dissenting.

The trial court dismissed charges against the defendant resulting from the defendant giving someone a bad check for $40,000.00 in payment for a valuable ring. The trial court granted the motion to dismiss on the authority of section 832.05(4)(a), Florida Statutes (1985) which provides in part:

However, no crime may be charged in respect to the giving of any such check or draft or other written order when the payee knows, has been expressly notified, or has reason to believe that the drawer did not have on deposit or to his credit with the drawee sufficient funds to ensure payment thereof.

Although there is evidence that the defendant requested and that the victims did in fact hold the check for some time before depositing it, there is also evidence that the defendant gave the victims specific assurances that the money to cover the check was in the bank then and would also be in the bank later when the check was cashed. I think this express representation is enough to remove the case from the provisions of section 832.05(4) and that a jury should be allowed to decide if the defendant intended to defraud the victims of the ring or the $40,000.00.