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COA finds evidence supporting restitution order too flimsy

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A victim of a burglary will have to turn to the civil process to get restitution after the Indiana Court of Appeals reversed and remanded with instructions a trial court’s order that provided the victim with $711.95 in compensation.

The state charged Carlin Iltzsch with Class B felony burglary and filed a habitual offender allegation after he was caught burglarizing the Indianapolis home of James Whittemore on May 30, 2011. Iltzsch was found guilty and sentenced to 12 years on the burglary court, enhanced by 10 years based on the habitual offender finding.

In addition, the trial court ordered Iltzsch to pay restitution in the amount of $711.95. The restitution order was based solely on the Victim Impact Statement from Whittemore.

Iltzsch appealed, arguing the evidence submitted at his sentencing hearing about the victim’s loss was insufficient to support the trial court’s order of restitution.

Although the COA acknowledged a defendant waives appellate review of the restitution order if he or she fails to object at trial to the entry of the restitution order or to the evidence concerning the amount of the restitution, it noted the “vast weight of recent caselaw” that indicates appellate courts will review restitution orders even where the defendant did not object.

The COA then cited J.H. v. State, 950 N.E.2d 731, 734 (Ind. Ct. App. 2011), as being instructive when considering the type of evidence necessary to support a restitution order. Whittemore only provided “bare, unsworn assertions” that his property had been damaged and that his total loss was $711.95.  

Writing for the majority, Judge Paul Mathias concluded, “The State had a full and fair opportunity to obtain and present evidence concerning Whittemore’s actual loss at Iltzsch’s sentencing hearing, but failed to do so. We believe that allowing the State to conduct a new restitution hearing and to present additional evidence concerning the loss would allow the State an inappropriate second bite at the apple. We therefore conclude that the State is not entitled to hold a new restitution order. We acknowledge that Whittemore must now resort to the civil process if he wishes to seek redress for his losses. However, this remedy will require nothing more than what the law requires: sufficient, admissible evidence to support his claims.”

 

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  3. 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.

  4. 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.

  5. 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.

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