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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. A traditional parade of attorneys? Really Evansville? Y'all need to get out more. When is the traditional parade of notaries? Nurses? Sanitation workers? Pole dancers? I gotta wonder, do throngs of admiring citizens gather to laud these marching servants of the constitution? "Show us your billing records!!!" Hoping some video gets posted. Ours is not a narcissistic profession by any chance, is it? Nah .....

  2. My previous comment not an aside at court. I agree with smith. Good call. Just thought posting here a bit on the if it bleeds it leads side. Most attorneys need to think of last lines of story above.

  3. Hello everyone I'm Gina and I'm here for the exact same thing you are. I have the wonderful joy of waking up every morning to my heart being pulled out and sheer terror of what DCS is going to Throw at me and my family today.Let me start from the !bebeginning.My daughter lost all rights to her 3beautiful children due to Severe mental issues she no longer lives in our state and has cut all ties.DCS led her to belive that once she done signed over her right the babies would be with their family. We have faught screamed begged and anything else we could possibly due I hired a lawyer five grand down the drain.You know all I want is my babies home.I've done everything they have even asked me to do.Now their saying I can't see my grandchildren cause I'M on a prescription for paipain.I have a very rare blood disease it causes cellulitis a form of blood poisoning to stay dormant in my tissues and nervous system it also causes a ,blood clotting disorder.even with the two blood thinners I'm on I still Continue to develop them them also.DCS knows about my illness and still they refuse to let me see my grandchildren. I Love and miss them so much Please can anyone help Us my grandchildren and I they should be worrying about what toy there going to play with but instead there worrying about if there ever coming home again.THANK YOU DCS FOR ALL YOU'VE DONE. ( And if anyone at all has any ideals or knows who can help. Please contact (765)960~5096.only serious callers

  4. He must be a Rethuglican, for if from the other side of the aisle such acts would be merely personal and thus not something that attaches to his professional life. AND ... gotta love this ... oh, and on top of talking dirty on the phone, he also, as an aside, guess we should mention, might be important, not sure, but .... "In addition to these allegations, Keaton was accused of failing to file an appeal after he collected advance payment from a client seeking to challenge a ruling that the client repay benefits because of unreported income." rimshot

  5. I am not a fan of some of the 8.4 discipline we have seen for private conduct-- but this was so egregious and abusive and had so many points of bad conduct relates to the law and the lawyer's status as a lawyer that it is clearly a proper and just disbarment. A truly despicable account of bad acts showing unfit character to practice law. I applaud the outcome.

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