[1994/oagheade.htm]

OAG 94-36

May 17, 1994

Hon. Dan Rowland

Office of the Commonwealth's Attorney

31st Judicial Circuit

P.O. 111

Prestonsburg, Kentucky 41653

Dear Mr. Rowland:

The following is a response to your letter of March 30, 1994 concerning the penalty provision of RRS 514.040.

In your letter, you asked the following questions regarding the penalty provision of RRS 514.040:

(1) What is the penalty for issuing a cold check knowing it will not be honored?

(2) Is it a class A misdemeanor or a class D felony?

(3) Are there circumstances in which the offense is a class A misdemeanor and circumstances in which the offense is a class D felony, as it relates to cold checks?

The pertinent language of KRS 514.040(7) states:

Theft by deception is a Class A misdemeanor unless the value of the property, service, or the amount of the check or night order referred to in subsection (5) or (6) of this section is three hundred dollars ($300) or more, in which case it is a Class D felony.

This language has been construed to mean that "under KRS 514.040 for a bad check, the amount of the check would be determinative of whether a felony or misdemeanor has been committed." OAG 83-121, a copy of which in enclosed for your review (emphasis added).

The basis for this interpretation is that generally, "a person is guilty of theft by deception when he obtains property or services,” KRS 514.040 (1), with fraudulent intent or writes a check for taxes or child support knowing that it will not be honored. KRS 514.040(5) (6).

The general rule concerning the penalty for such an act is that theft by deception is a class A misdemeanor. However, theft by deception is enhanced to a class D felony under the following circumstances:

1. The value of the property obtained in exchange for a cold check is three hundred dollars or more;

2. The value of the service obtained in exchange for a cold check is three hundred dollars or more;

3. The defendant issued a cold check or similar sight order for three hundred dollars or more in payment of all or any part of any tax payable to the Commonwealth knowing that it will not be honored; or

4. The defendant issued a cold check or similar sight order for three hundred dollars or more in payment of all or any part of a child support obligation knowing that it will not be honored.

The penalty provision of KRS 514. 040 refers to “property,” “services,” and “the check or sight order” and makes the dollar amounts of each of these three categories determinative of the misdemeanor or felony classification.

The reason for making specific reference to subsection (5) (taxes) and (6) (child support) in the penalty provision of RRS 514.040 was to specifically include punishing someone who makes tax and child support payments with a cold check because taxes and child support payments are not “property” or “services” within the meaning of KRS 514.040 (1) . Once the statute was amended to include payment of taxes (1982) and child support (1992) with a Cold check" as two additional categories for punishment, the penalty provision needed to be amended.

HISTORY OF THE PENALTY PROVISION OF 514.040

Prior to the inclusion of the specific reference to subsections (5) and (6) in the penalty provision of the theft by deception statute, the statute was written only in terms of theft of “property.” (See, Acts of the General Assembly of 1974, Chapter 406, Section 320.) Accordingly, the 1974 penalty provision required only that property be obtained by deceptive intent in exchange for a cold check. The statute made no reference to services, taxes or child support.

The statute was amended in 1982 to make reference to “property,” “services,” and “check or similar sight order.” (See, Acts of the General Assembly of 1982, Chapter 305, Section 1.) When this amendment occurred, the penalty provision needed to be amended to be consistent with the new categories for punishment.

Finally, in 1992 the statute was amended to add child support as a category for punishment. (See, KRS 514.040(6).) Again, since the statute was being amended to include punishing for writing a cold check for child support, the penalty section needed to make specific reference to section (6) (child support) because child support did not come within the “property” and “services” general language of KRS 514.040(1).

Copies of the 1974, 1982 and 1992 theft by deception statutes are enclosed for your review so that you can see how the language of the penalty section has changed with the inclusion of the tax and child support amendments in 1982 and 1992.

Respectfully submitted,

CHRIS GORMAN

ATTORNEY GENERAL

Cindy A. Goldhill

Assistant Attorney General