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April 2012 Archives

What is Theft By Unlawful Taking?

In Kentucky there are various charges relating to Theft. Theft By Unlawful Taking, generally referred to as TBUT, is defined under KRS 514 et al as a Misdemeanor if the value of the theft is under $500. TBUT < $500 and commonly referred to as Theft Under. The charge is a more serious D Felony if the value is five hundred dollars ($500) or more but less than ten thousand dollars ($10,000); or a Class C felony if ten thousand dollars ($10,000) or more. Misdemeanors are generally punishable in Kentucky by up to 12 months in jail and/or $500 fine. Involvement of an attorney as early as possible is a key to having the case resolved successfully and acceptable to the parties involved. TBUT is typically a bad check, but can also be deceiving an elderly person or other form of trickery. In the typical case of a bad check, often times a resolution can be reached early in the case if the Defendant has the ability to make the check good and pay for the value of the check. Of course, the county will have a fee for this "service" and the Defendant will undoubtedly spend money on legal fees, court costs and county attorney fees. A simple bad check for $50 may end up being $300 in fees and court costs plus the cost of the legal fees incurred. If a check is returned for NSF, insufficient funds, it is presumed that the person writing the check knew or should have know that there were insufficient funds to pay the check. This is written so that the prosecutor does not have to prove state of mind of the Defendant. The statue reads, in pertinent part under KRS 514.040(6): A person is guilty of theft by deception when the person issues a check or similar sight order in payment of all or any part of any tax payable to the Commonwealth knowing that it will not be honored by the drawee. If you have been charged with theft by unlawful taking or any other crime in Boone, Kenton or Campbell counties, contact Michael Bouldin for a consultation. Contact Mike by email at [email protected] or call 859-581-6453. call 581-MIKE

Is it a Criminal Offense to Write a Bad Check?

It is generally charged as a criminal offense if you write a bad check in Kentucky. Kenton, Boone and Campbell counties have bad check programs which are generally available for first time offenders and may be available for subsequent offenses. A criminal defense attorney can help guide you through the legal net to get the case resolved, often without a criminal record. KRS 514.040 defines Theft by deception as follows: (1) A person is guilty of theft by deception when the person obtains property or services of another by deception with intent to deprive the person thereof. A person deceives when the person intentionally: (a) Creates or reinforces a false impression, including false impressions as to law, value, intention, or other state of mind; (b) Prevents another from acquiring information which would affect judgment of a transaction; (c) Fails to correct a false impression which the deceiver previously created or reinforced or which the deceiver knows to be influencing another to whom the person stands in a fiduciary or confidential relationship; (d) Fails to disclose a known lien, adverse claim, or other legal impediment to the enjoyment of property which the person transfers or encumbers in consideration for the property obtained, whether the impediment is or is not valid or is or is not a matter of official record; or (e) Issues or passes a check or similar sight order for the payment of money, knowing that it will not be honored by the drawee. (2) The term "deceive" does not, however, include falsity as to matters having no pecuniary significance or puffing by statements unlikely to deceive ordinary persons in the group addressed. (3) Deception as to a person's intention to perform a promise shall not be inferred from the fact alone that he did not subsequently perform the promise. (4) For purposes of subsection (1) of this section, a maker of a check or similar sight order for the payment of money is presumed to know that the check or order, other than a postdated check or order, would not be paid, if: (a) The maker had no account with the drawee at the time the check or order was issued; or (b) Payment was refused by the drawee for lack of funds, upon presentation within thirty (30) days after issue, and the maker failed to make good within ten (10) days after receiving notice of that refusal. Notice of the refusal may include a citation to this section and a description of this section's criminal penalties and shall be deemed properly addressed when mailed to the address printed or written on the check or sight order or provided by the drawer or maker upon issuance of the check or sight order. The notice, if mailed, shall be deemed received by the addressee seven (7) days after it is placed in the United States mail. The notice may be sent by first-class mail if supported by an affidavit of service setting out the contents of the notice, the address to which the notice was mailed, that correct postage was applied, and the date the notice was placed in the United States mail. A maker makes good on a check or similar sight order for the payment of money by paying to the holder the face amount of the instrument, together with any merchant's posted bad check handling fee not to exceed fifty dollars ($50) and any fee imposed pursuant to subsection (5) of this section. (5) If a county attorney issues notice to a maker that a drawee has refused to honor an instrument due to a lack of funds as described in subsection (4)(b) of this section, the county attorney may charge a fee to the maker of fifty dollars ($50), if the instrument is paid. Money paid to the county attorney pursuant to this section shall be used only for payment of county attorney office operating expenses. Excess fees held by the county attorney on June 30 of each year shall be turned over to the county treasurer before the end of the next fiscal year for use by the fiscal court of the county. (6) A person is guilty of theft by deception when the person issues a check or similar sight order in payment of all or any part of any tax payable to the Commonwealth knowing that it will not be honored by the drawee. (7) A person is guilty of theft by deception when the person issues a check or similar sight order in payment of all or any part of a child support obligation knowing that it will not be honored by the drawee. (8) Theft by deception is a Class A misdemeanor unless the value of the property, service, or the amount of the check or sight order referred to in subsection (6) or (7) of this section is: (a) Five hundred dollars ($500) or more but less than ten thousand dollars ($10,000), in which case it is a Class D felony; or (b) Ten thousand dollars ($10,000) or more, in which case it is a Class C felony. If you wrote a bad check and have been charged with Theft by Deception, you should hire an attorney. For a consultation in Northern Kentucky, contact Michael Bouldin at 859-581-6453 (581-MIKE) or email at [email protected] .

George Zimmerman v. Trayvon Martin - really?

George Zimmerman has now been charged in the Trayvon Martin shooting with Murder 2 in Florida. It is very interesting that the local district attorney chose to bypass the Grand Jury process in favor of bringing charges via criminal information. It could be that because a Grand Jury process is confidential, that if they chose to Not Indict, there would be the same outrage against the system and the prosecutor. It could also be that the prosecutor had doubts about her case and did not want the case dismissed by the Grand Jury. Finally, the prosecutor could have feared that the Grand Jury would return a Murder 1 indictment, even though it was clearly not warranted and would be impossible for the prosecution to prove. Whatever the reason, based on the facts of the case and the current law in Florida, there is no way that Mr. Zimmerman should be convicted under the current Florida law. The current stand your ground law provides that you have no duty to retreat if there is a perceived threat. It further provides that if you believe that you are in imminent danger, you can use lethal force to oppose that danger. The jury is supposed to consider the belief through the eyes of George Zimmerman. The second question is whether George Zimmerman can get a fair trial, in Florida or anywhere. This case has already taken a Rodney King or OJ Simpson tone that the entire nation will be engaged in the trial. Furthermore, it is astounding and disappointing that what we would think are intelligent and open minded people, evaluate this case so much along racial lines. It highlights how prominent race still remains a determining factor, at least to some people, and how much it colors our view of reality. As such, the likelihood of a trial is very likely. That said, both sides have much to lose if the case proceeds to trial. Mr. Zimmerman may lose 20 years of his freedom and will likely be killed in prison. The state may lose the trial and see the outrage of the citizens in the form of riots, looting or marches. Even though the Judge will instruct a jury to consider only the facts presented at trial, you have to ask, "Will the Jury consider the likelihood of looting and riots if a Not Guilty verdict is returned?" As a juror, can you afford not to ask yourself this questions? If a prosecutor can be swayed by public opinion, how can we not expect jurors to also be affected. If death threats are made upon George Zimmerman, how can a juror not also feel the heat and threats to their decision. This is a highly unfortunate circumstances that brought together Trayvon Martin and George Zimmerman. Was one looking for a fight? Likely. Which one? Regardless of the outcome of a trial or a plea, we will really never know. All that is left to do is pray for both of these individuals, pray for their families and pray that this case will not lead to violence and rioting but to a better understanding of life on the streets and the dangers involved. Note: I do not often do opinion pieces but this trial will undoubtedly generate buzz and questions.

How Do I Pay For An Attorney?

Most attorneys who handle criminal law matters want to be paid up front for the majority of the work they are going to preform. This is known as a retainer. In Northern Kentucky, there are very few, if any, attorneys who will work on an hourly basis on criminal cases. This can be done if a substantial retainer is paid up front against which the attorney can bill. This may be done in an extensive federal case where the time for a trial may be weeks or months. A separate retainer may be required if the case proceeds to trial. Kentucky has another option if the person has posted a cash bond to be released on bail. The bail money may be assigned to the attorney to assure that fees will be paid. Most attorneys in Northern Kentucky will accept a bail bond assignment in lieu of cash up front if the bail money is sufficient to cover the fees and/or retainer. If a person is declared indigent and the defendant requests an attorney, the court will appoint a Public Advocate, also known as a Public Defender, in criminal cases. The defendant must request the attorney and fill out an affidavit of indigency. The court must make a determination and then should appoint a PD if the defendant faces a possibility of jail time. The defendant does not get to choose their public advocate. Most people who can afford a private attorney choose to hire one. Many attorneys, including myself, accept checks, cash, bond assignments and all major credit cards. In some occasions, payment plans may also be approved depending on the nature of the case, the time anticipated until trial and the payment arrangements. If you are unsure of the cost and how to pay for an attorney, most attorneys will give a free phone consultation. To ask more questions, contact Michael Bouldin at [email protected] or call 859-581-6453 (581-MIKE).

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