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Opinions Sept. 13, 2013

September 13, 2013
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Indiana Court of Appeals
Jerry A. Smith v. State of Indiana
15A05-1208-CR-411
Criminal. Affirms Dearborn Superior Court’s denial of Smith’s motion to dismiss three charges and reverses the court’s denial of the motion to dismiss 15 state charges. Rules most of the charges brought against Smith for an alleged Ponzi scheme violated double jeopardy because they were for the same conduct included in his guilty plea to a federal indictment. However, the charges related to Smith’s failing to register with the Indiana Secretary of State as a broker-dealer can stand since they were not related to the federal charges. Judge Nancy Vaidik dissents, arguing the remaining charges also violate double jeopardy because both the federal and state charges rely, partially, on Smith’s failure to register.

Jerry A. Smith v. State of Indiana
24A01-1210-CR-469
Criminal. Affirms Franklin Circuit Court’s order dismissing 24 state charges and denying Smith’s motion to dismiss five other charges. Reserves denial of motion to dismiss remaining state court charges and remands for further proceedings. Finds most of the charges brought against Smith for an alleged Ponzi scheme were for the same conduct included in his guilty plea to a federal indictment and therefore violate double-jeopardy prohibitions. However, the charges related to Smith’s failing to register with the Indiana secretary of state as a broker-dealer can stand because they were not related to the federal charges. Judge Nancy Vaidik dissents, arguing the remaining charges also violate double jeopardy since both the federal and state charges rely, partially, on Smith’s failure to register.

Von Tobel Corporation, Individually, and d/b/a Von Tobel Lumber & Hardware; and Von Tobel Lumber & Home Center, Inc. v. Chi-Tec Construction & Remodeling, Inc.; John F. Ziola, Jr.; Et Al.
46A03-1301-MI-18
Miscellaneous/mechanic’s lien. Reverses grant of summary judgment in favor of the Margret Lynn West trust, one of the defendant parties, and orders summary judgment entered for Von Tobel. The panel reversed a trial court ruling that the lien was invalid because a pre-lien notice named “Von Tobel Lumber & Home Center Inc.” and the lien notice named “Von Tobel Corporation” as claimants. The difference was minimal, not misleading and didn’t prejudice the trust or other parties, the panel held.

In the Matter of the Termination of the Parent-Child Relationship of Jo. B. & Ju. B.(Minor Children) and T. B.(Mother) v. The Indiana Department of Child Services (NFP)
49A05-1303-JT-92
Juvenile. Affirms termination of T.B.’s parental rights to her children, Ju.B. and Jo.B.

Lamar Miller v. State of Indiana (NFP)
49A05-1302-CR-46
Criminal. Affirms conviction of Class A misdemeanor invasion of privacy.

Charles Grieco v. State of Indiana (NFP)
49A04-1301-CR-32
Criminal. Affirms conviction for operating a vehicle while intoxicated, as a Class C misdemeanor.

Indiana Supreme Court and Indiana Tax Court issued no opinions by IL deadline. The 7th Circuit Court of Appeals issued no Indiana opinions by IL deadline.  
 

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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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