APPEAL FROM LAKE COUNTY COURT, DIVISION III, No. 45A03-8612-CR-358, The Honorable Paul D. Stanko, Judge, Cause No. 2C-85-4073.
Givan, J. Pivarnik, J., concurs. DeBruler, J., concurs with separate opinion in which Shepard, C.j., concurs for the reasons expressed therein. Dickson, J., concurs in both Givan's, J., and DeBruler's, J., opinions.
ON CRIMINAL PETITION FOR TRANSFER
In a published opinion, Kimberling v. State (1987), Ind.App., 516 N.E.2d 1070, the Court of Appeals reversed appellant's conviction of Check Deception and ordered entry of a judgment of acquittal.
The facts are: Appellant operated several businesses in Lake County. On January 24, 1985, he issued a check in the amount of $1,971 to pay for goods previously delivered by City Sales. That check, number 1134, was drawn on one of appellant's business accounts with Citizens Federal Savings. Before he issued the check, he phoned the bank to inquire about his balance and was told that he had $4,572.97. However, when the check was presented, six days after it was issued, it was returned by the bank marked "UNCOLL."
An agent for the payee was assigned the task of collecting the amount of the check. The agent arranged a payment schedule with appellant. Two other checks which had been dishonored were paid by appellant; however, check number 1134 remained unpaid. The payee's agent notified appellant that if payment was not made promptly they would seek criminal prosecution.
After the agent's oral advisement, appellant was sent a letter which stated:
"Unless full payment of $5,633,12 [sic] is received by March 25, 1985, your account will be turned over to the prosecuting attorney for legal action."
The payment was not made and appellant was subsequently convicted of check deception in connection with check number 1134.
The majority opinion of the Court of Appeals takes the position that the above letter did not fulfill the statutory requirement of notice as set forth in Ind.Code § 35-43-5-5(e), which reads as follows:
"It is a defense under subsection (a) if a person who:
(1) has an account with a credit institution but does not have sufficient funds ...