ILNews

COA affirms $1,380 restitution order for missing CDs, coins

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The Indiana Court of Appeals held Thursday that a trial court did not err in letting the state present evidence of a victim’s loss for the first time at a restitution hearing. It affirmed an order that Kenneth Smith pay $1,380 to William Kirkham for missing CDs and coins.

Smith was convicted of Class D felony theft for stealing a radio, guitar, DVDs and a silver coin from Kirkham’s house while he was away. At the restitution hearing, Kirkham said he was also missing nearly 400 CDs and about $100 in cash in the form of silver dollars and half dollars. Smith objected, but the court allowed the testimony. It then determined the loss was $1,380.

The trial court asked if Smith could afford to pay $230 a month toward restitution, and Smith said he was paying $240 a month for home detention. The judge ordered Smith to pay the restitution first and then the court would address the home detention payments.

The COA found the trial court based its restitution order wholly on the acts underlying Smith’s convictions and that Kirkham’s testimony demonstrated his degree of loss attributable to Smith’s crime. Also, restricting evidence of the victim’s actual loss to that which the prosecutor uses to obtain a conviction might limit the amount the victim can recover under Indiana law, Judge Edward Najam pointed out in Kenneth Smith v. State of Indiana, 49A02-1212-CR-1017.

The judges also found the trial court looked into Smith’s ability to pay. Smith did not dispute that he could pay $240 a month for home detention so he could afford $230 for restitution every month.

 

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  2. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  3. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

  4. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

  5. I am the mother of the child in this case. My silence on the matter was due to the fact that I filed, both in Illinois and Indiana, child support cases. I even filed supporting documentation with the Indiana family law court. Not sure whether this information was provided to the court of appeals or not. Wish the case was done before moving to Indiana, because no matter what, there is NO WAY the state of Illinois would have allowed an appeal on a child support case!

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