Restitution for lost wages an error

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A trial court erred in ordering a man to pay restitution of the lost wages of his victim because there's no direct link the man's criminal recklessness caused the victim to be fired, the Indiana Court of Appeals ruled.

In Douglas Wolff v. State of Indiana, No. 27A05-0907-CR-368, Douglas Wolff pleaded guilty to criminal recklessness and disorderly conduct for firing a shotgun in the direction of co-worker Michael Smithhisler. Wolff and Smithhisler worked for Wolff's dad, Merrill, at the time of the incident. Smithhisler was fired shortly after the incident, which he claimed was because he pressed charges against Wolff. Merrill said he fired Smithhisler because he didn't report for work for several days after the incident, didn't answer Merrill's phone calls, and when he did come back to work, said he didn't think it was the best idea for him to come back right after the incident.

Wolff's sentences were suspended and he was ordered to pay $921 in counseling expenses and $12,789 in lost wages to Smithhisler, and $1,631 to the Grant County Sheriff's Department. Smithhisler testified the incident made him have trouble sleeping and caused him to constantly worry about being shot. He also said he had trouble holding down a job after the shooting.

Wolff only appealed the order of restitution for lost wages.

"It is true that Wolff's actions in firing his shotgun set in motion the chain of events that eventually led to the termination of Smithhisler's job," wrote Judge Nancy Vaidik. "But Wolff did not terminate Smithhisler; his father, Merrill, did."

The fact Smithhisler was fired and couldn't keep a job was not "a result of the crime" to support ordering restitution. Wolff's actions may have indirectly led to Smithhisler's firing and lost earnings, but Indiana Code Section 35-50-5-3(a)(4) requires more than that, she continued.

Smithhisler's claim is inappropriate for criminal restitution, but it may give rise to file a civil claim against Merrill. The appellate court reversed the award of lost earnings.


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  1. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

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