S.S. (not her real initials) was initially represented by the Public Defenders office in connection with charges of third degree grand theft and uttering a forged instrument. The State alleged that S.S. had deposited a counterfeit check on April 30, 2007, into a Seacoast National Bank in Port St. Lucie, Florida, in an amount of $4,850.75. At that time, S.S. received $2,600.00 cash back. The balance of the deposit stayed in the account.

Several days later, the bank received notification that the check was invalid and, more specifically, was counterfeit.

Based upon S.S.s significant prior criminal history, the States plea offer called for three years in prison. The Assistant Public Defender did not offer much encouragement with respect to the chances of prevailing at trial.

S.S.s family was finally able to refinance a property. S.S. retained Jeffrey H. Garland to represent her on these charges on May 16, 2008. This is certainly an example of retaining an attorney at the very last moment.

Circuit Judge Larry Schack granted a defense continuance the following week. This allowed the defense to investigate the circumstances of the charges.

Attorney Garland requested that S.S. produce her banking records in the months preceding the questioned transaction. The bank records showed that S.S. was depositing significant sums of money into her checking account on a regular basis, approximately every 2 – 3 weeks. The records showed that S.S. regularly incurred overdraft charges, but the bank always paid the checks. S.S. always covered the checks and paid the extra charges.

S.S. had explained to a Port St. Lucie police detective that she had received a check in the mail from Principal Life Insurance Co. The check was payable to S.S. for $4,850.75. The check appeared to be valid. In fact, the check was examined by both the teller and the assistant branch manager before it was accepted for deposit. The check appeared to be valid to the banking officials who are, it would seem, most knowledgeable in recognizing questionable documents.

Unfortunately for S.S., the Port St. Lucie Police Dept. initiated a forfeiture action against her assets, including assets belonging to her family. Because these assets were frozen, S.S. could not transfer funds into the checking account to cover the questioned check.

The bank sent out the customary notices that the check had bounced. S.S. could only promise her intention to make the check good, but was unable to do so, because her assets were frozen. Attorney Garland scheduled depositions of key players in the police investigation. The banks fraud investigator admitted that the check appeared valid in every way, except one minor detail. The check was a Principal Life Insurance Co. check drawn on an account at the Northern Trust Co. of Chicago, Illinois. There were only four digits, instead of the normal five, on the zip code associated with Northern Trust Co.s address.

In other respects, the check appeared normal and valid. It had a special watermark which would appear under black light. It was on multi-colored paper. It had micro-printing. The banks fraud investigator admitted that the bank had, at various branches, received counterfeit checks from different customers. In some instances, those customers had been victims of some type of con game. Unscrupulous persons would contact a bank customer with some type of proposal. Sometimes, the proposal involved a lottery and sometimes an inheritance. In many of these instances, the bank customer was to deposit a check and remit a portion of the check back to the unscrupulous originator of the fraud. After the bank customer had sent the money back to the con man, the bank would learn that the deposited check was no good.

The banks fraud investigator admitted that there was no evidence of such a scheme in this case. The check deposited by S.S. was from a recognized insurance company and was not associated with any known illegal scheme. The amount of the questioned check was far less than many checks deposited into her account. This was not a disproportionate transaction.

Garland also deposed the assistant branch manager. She confirmed that the check appeared valid. She also acknowledged having received extensive fraud detection training. She acknowledged that most ordinary bank customers would not know much about fraud detection.

The investigating detective admitted that there was no evidence of similar transactions by S.S. There was no evidence linking S.S. to any larger scheme. There was no explanation as to how she could have manufactured a check which appeared in such detail to be valid.

The main problem in this case was S.S.s extensive prior criminal history which made it virtually impossible for S.S. to testify. If she chose to testify, S.S. would certainly be asked by the prosecutor: Have you ever been convicted of a felony? How many times?.

It was unknown whether the State could establish a prima facie case against S.S. If the State could, then S.S. would run the risk of a significant prison sentence. The State would not stipulate to the facts set forth in a “C-4” motion to dismiss. A C-4 motion would ordinarily be used where the facts are known and not disputed.

S.S. had significant health problems and a teenaged daughter. She determined that the risk of trial was not worth it. In light of these circumstances, the State offered a plea to straight probation with early termination after two years. S.S. accepted the plea on August 25, 2008, and was sentenced in accordance with the agreement.

This case outlines several issues of interest. When involved with a criminal prosecution, it is important to identify the primary goal of the defense. If the primary goal is properly identified, then seemingly difficult decisions become much easier.

In S.S.s case, the primary goal was to avoid incarceration. She accomplished that goal. Since she was already a convicted felon, the adjudication of guilt on one additional charge posed no additional problem. The other charge was dropped.

For many people, the primary goal might be to avoid a felony conviction. A felony conviction might cause the individual to lose their job. For others, the primary goal might be to avoid license suspension. For many people, it is simply not an option to risk incarceration, because they have families to support, mortgages to pay, and jobs.