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. I think the cops are doing a great job locking up criminals. The Murder rates in the inner cities are skyrocketing and you think that too any people are being incarcerated. Maybe we need to lock up more of them. We have the ACLU, BLM, NAACP, Civil right Division of the DOJ, the innocent Project etc. We have court system with an appeal process that can go on for years, with attorneys supplied by the government. I'm confused as to how that translates into the idea that the defendants are not being represented properly. Maybe the attorneys need to do more Pro-Bono work

  2. We do not have 10% of our population (which would mean about 32 million) incarcerated. It's closer to 2%.

  3. If a class action suit or other manner of retribution is possible, count me in. I have email and voicemail from the man. He colluded with opposing counsel, I am certain. My case was damaged so severely it nearly lost me everything and I am still paying dearly.

  4. There's probably a lot of blame that can be cast around for Indiana Tech's abysmal bar passage rate this last February. The folks who decided that Indiana, a state with roughly 16,000 to 18,000 attorneys, needs a fifth law school need to question the motives that drove their support of this project. Others, who have been "strong supporters" of the law school, should likewise ask themselves why they believe this institution should be supported. Is it because it fills some real need in the state? Or is it, instead, nothing more than a resume builder for those who teach there part-time? And others who make excuses for the students' poor performance, especially those who offer nothing more than conspiracy theories to back up their claims--who are they helping? What evidence do they have to support their posturing? Ultimately, though, like most everything in life, whether one succeeds or fails is entirely within one's own hands. At least one student from Indiana Tech proved this when he/she took and passed the February bar. A second Indiana Tech student proved this when they took the bar in another state and passed. As for the remaining 9 who took the bar and didn't pass (apparently, one of the students successfully appealed his/her original score), it's now up to them (and nobody else) to ensure that they pass on their second attempt. These folks should feel no shame; many currently successful practicing attorneys failed the bar exam on their first try. These same attorneys picked themselves up, dusted themselves off, and got back to the rigorous study needed to ensure they would pass on their second go 'round. This is what the Indiana Tech students who didn't pass the first time need to do. Of course, none of this answers such questions as whether Indiana Tech should be accredited by the ABA, whether the school should keep its doors open, or, most importantly, whether it should have even opened its doors in the first place. Those who promoted the idea of a fifth law school in Indiana need to do a lot of soul-searching regarding their decisions. These same people should never be allowed, again, to have a say about the future of legal education in this state or anywhere else. Indiana already has four law schools. That's probably one more than it really needs. But it's more than enough.

  5. This man Steve Hubbard goes on any online post or forum he can find and tries to push his company. He said court reporters would be obsolete a few years ago, yet here we are. How does he have time to search out every single post about court reporters and even spy in private court reporting forums if his company is so successful???? Dude, get a life. And back to what this post was about, I agree that some national firms cause a huge problem.