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COA: Successive Prosecution Statute not applicable to theft case

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A Howard Superior judge properly refused to dismiss theft charges against a man because, despite the defendant’s arguments to the contrary, the Howard County charges were not previously prosecuted in Miami County.

Johann Schmidt sought to dismiss two Class C felony theft charges filed in Howard County related to his role in fraudulently securing loans from First Farmer’s State Bank by using collateral he no longer owned. Schmidt previously faced charges in Miami County on allegations he did not deliver concrete crushers to Mark Bowyer as agreed, after Bowyer had paid Schmidt several million dollars for several machines. Schmidt instead sold those machines he promised Bowyer to other companies after taking Bowyer’s money. Bowyer had borrowed money from a bank in Howard County to send Schmidt money to buy the machines. The charges in both counties were related to Schmidts’ business dealings with Bowyer.

Schmidt faced several charges of theft and fraud related to Bowyer and the bank in Miami County, but pleaded guilty to one count of theft for theft of money from FFSB.

Schmidt argued that Indiana’s Successive Prosecution Statute bars the filing of charges in Howard County because the charges should have been joined with the Miami County charges as they arose out of a single joint venture with the same alleged victim.

The trial court denied the motion, leading to this interlocutory appeal in Johann Schmidt v. State of Indiana, 34A02-1207-CR-570.  

“Schmidt’s offenses were not ‘a single criminal transaction’ identified by ‘a distinctive nature . . . common modus operandi, and a common motive.’ Instead, Schmidt committed offenses against two victims, FFSB and Bowyer,” Judge John Baker wrote. “Moreover, the offenses that Schmidt committed against each victim are also different in time and manner. Schmidt’s offenses against FFSB were perpetrated by fraudulent loan agreements and the resulting theft of FFSB’s property, either by Schmidt’s failure to repay the loan or by selling the collateral.”

The judges also rejected Schmidt’s claim that Indiana Code 35-34-1-10(c) requires the state to join all “potential” charges in a single prosecution whenever joinder “could” occur because that statute does not require the state to bring all potential charges in a unified action.

The case goes back to the trial court for more proceedings.

 

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  1. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

  2. As a lawyer who grew up in Fort Wayne (but went to a real law school), it is not that hard to find a mentor in the legal community without your school's assistance. One does not need to pay tens of thousands of dollars to go to an unaccredited legal diploma mill to get a mentor. Having a mentor means precisely nothing if you cannot get a job upon graduation, and considering that the legal job market is utterly terrible, these students from Indiana Tech are going to be adrift after graduation.

  3. 700,000 to 800,000 Americans are arrested for marijuana possession each year in the US. Do we need a new justice center if we decriminalize marijuana by having the City Council enact a $100 fine for marijuana possession and have the money go towards road repair?

  4. I am sorry to hear this.

  5. I tried a case in Judge Barker's court many years ago and I recall it vividly as a highlight of my career. I don't get in federal court very often but found myself back there again last Summer. We had both aged a bit but I must say she was just as I had remembered her. Authoritative, organized and yes, human ...with a good sense of humor. I also appreciated that even though we were dealing with difficult criminal cases, she treated my clients with dignity and understanding. My clients certainly respected her. Thanks for this nice article. Congratulations to Judge Barker for reaching another milestone in a remarkable career.

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