Sept. 10, 2014 – A state appeals court recently upheld Kim Simmelink’s multi-count conviction for felony theft, rejecting his argument that the village he stole from should have discovered the theft sooner and the case was barred by the statute of limitations.
Simmelink was the clerk and treasurer for the Village of Oostberg when law enforcement began investigating him for embezzling funds. In 2007, he was charged on six counts of theft from a business setting three counts of forgery.
Ultimately, he pled no contest. Simmelink was sentenced on two counts of theft instead of six counts, and two counts of forgery instead of three.
But in 2011, the village discovered records that indicated Simmelink committed 26 additional felony thefts from 2001 to 2003. A new criminal action was filed in 2012. Simmelink moved to dismiss on the grounds that the action was time-barred. The judge denied the motion and he was ultimately convicted on all 26 counts. He appealed.
In State v. Simmelink, 2013AP2491-CR (Sept. 3, 2014), a three-judge panel for the District II Wisconsin Court of Appeals affirmed the circuit court and rejected Simmelink’s argument that the new criminal action was time-barred by a statute of limitations.
Under Wis. Stat. section 939.74(1), felony prosecutions must be commenced within six years of the crime. But there’s an exception for felony embezzlement cases.
Under section 939.74(2)(b), embezzlement actions may be commenced “within one year after discovery of the loss by the aggrieved party. …” The statute of limitations for felony embezzlement is extended by five years, allowing a criminal action to commence so long as the victim discovers the embezzlement within 10 years from the date of the crime.
But Simmelink unsuccessfully argued that the exception should not apply because the village did not exercise reasonable diligence in discovering the 2001 to 2003 thefts.
However, the three-judge appeals panel, in an opinion by Judge Mark Gundrum, ruled that the section 939.74(2)(b)’s one-year clock starts ticking “when the aggrieved party actually discovers the loss, not when it should have discovered the loss.”
Simmelink noted that for civil tort and fraud claims, the clock starts ticking “on the date the injury is discovered or with reasonable diligence should be discovered, whichever occurs first.” But the appeals panel refused to apply it to criminal embezzlement cases.
“Reading the phrase ‘after discovery of the loss’ to also mean ‘after the loss reasonably should have been discovered,’ would be effectively rewriting the statute, which is the job of the legislature, not the courts,” wrote Judge Gundrum for the panel.
