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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. Hail to our Constitutional Law Expert in the Executive Office! “What you’re not paying attention to is the fact that I just took an action to change the law,” Obama said.

  2. What is this, the Ind Supreme Court thinking that there is a separation of powers and limited enumerated powers as delegated by a dusty old document? Such eighteen century thinking, so rare and unwanted by the elites in this modern age. Dictate to us, dictate over us, the massess are chanting! George Soros agrees. Time to change with times Ind Supreme Court, says all President Snows. Rule by executive decree is the new black.

  3. I made the same argument before a commission of the Indiana Supreme Court and then to the fedeal district and federal appellate courts. Fell flat. So very glad to read that some judges still beleive that evidentiary foundations matter.

  4. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

  5. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

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