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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. He did not have an "unlicensed handgun" in his pocket. Firearms are not licensed in Indiana. He apparently possessed a handgun without a license to carry, but it's not the handgun that is licensed (or registered).

  2. Once again, Indiana's legislature proves how friendly it is to monopolies. This latest bill by Hershman demonstrates the lengths Indiana's representatives are willing to go to put big business's (especially utilities') interests above those of everyday working people. Maassal argues that if the technology (solar) is so good, it will be able to compete on its own. Too bad he doesn't feel the same way about the industries he represents. Instead, he wants to cut the small credit consumers get for using solar in order to "add a 'level of certainty'" to his industry. I haven't heard of or seen such a blatant money-grab by an industry since the days when our federal, state, and local governments were run by the railroad. Senator Hershman's constituents should remember this bill the next time he runs for office, and they should penalize him accordingly.

  3. From his recent appearance on WRTV to this story here, Frank is everywhere. Couldn't happen to a nicer guy, although he should stop using Eric Schnauffer for his 7th Circuit briefs. They're not THAT hard.

  4. They learn our language prior to coming here. My grandparents who came over on the boat, had to learn English and become familiarize with Americas customs and culture. They are in our land now, speak ENGLISH!!

  5. @ Rebecca D Fell, I am very sorry for your loss. I think it gives the family solace and a bit of closure to go to a road side memorial. Those that oppose them probably did not experience the loss of a child or a loved one.

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