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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. Excellent initiative on the part of the AG. Thankfully someone takes action against predators taking advantage of people who have already been through the wringer. Well done!

  2. Conour will never turn these funds over to his defrauded clients. He tearfully told the court, and his daughters dutifully pledged in interviews, that his first priority is to repay every dime of the money he stole from his clients. Judge Young bought it, much to the chagrin of Conour’s victims. Why would Conour need the $2,262 anyway? Taxpayers are now supporting him, paying for his housing, utilities, food, healthcare, and clothing. If Conour puts the money anywhere but in the restitution fund, he’s proved, once again, what a con artist he continues to be and that he has never had any intention of repaying his clients. Judge Young will be proven wrong... again; Conour has no remorse and the Judge is one of the many conned.

  3. Pass Legislation to require guilty defendants to pay for the costs of lab work, etc as part of court costs...

  4. The fee increase would be livable except for the 11% increase in spending at the Disciplinary Commission. The Commission should be focused on true public harm rather than going on witch hunts against lawyers who dare to criticize judges.

  5. Marijuana is safer than alcohol. AT the time the 1937 Marijuana Tax Act was enacted all major pharmaceutical companies in the US sold marijuana products. 11 Presidents of the US have smoked marijuana. Smoking it does not increase the likelihood that you will get lung cancer. There are numerous reports of canabis oil killing many kinds of incurable cancer. (See Rick Simpson's Oil on the internet or facebook).

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