Prosecutor Continuing Theft Charges Despite the Victim's Wishes

Attorney Answer

The alleged victim cannot drop your theft charges — only the court can dismiss them. But the prosecutor's goodwill is not your only route: Indiana Code § 35-34-1-4(a) lets you file your own motion to dismiss, and it carries a short deadline.

Under Indiana Code § 35-34-1-13(a), the court orders dismissal upon the prosecuting attorney's motion, so the state's own decision to drop a case rests with the prosecutor and the court, not the person who reported the offense. Even if the alleged victim tells you or the state they want the charges dropped, that doesn't compel dismissal — the prosecutor can choose to continue the case if they believe the evidence supports it.

The prosecutor is not the only path, though. Indiana Code § 35-34-1-4(a) provides that the court "may, upon motion of the defendant, dismiss the indictment or information" on eleven enumerated grounds — among them that the charging document is defective, that "the facts stated do not constitute an offense," that the prosecution is untimely or barred by a previous prosecution, that you were denied a speedy trial, and "any other ground that is a basis for dismissal as a matter of law." That motion runs on a clock. Under Indiana Code § 35-34-1-4(b) it must generally be filed no later than 20 days before the omnibus date if you are charged with a felony, or 10 days before it if you are charged only with misdemeanors. Some grounds, such as immunity, a prior prosecution, or a jurisdictional defect, can still be raised closer to trial, but the defect-based grounds can be summarily denied if you file late. That deadline is the single strongest reason to get counsel on this now rather than waiting for the prosecutor to change their mind.

Since you already have an active case with court dates listed in the online case system, this is a formal proceeding you need to respond to.

What you can do:

1. Retain an attorney now — hire private defense counsel or request a public defender if you qualify financially. Don't wait for the next court date: the Indiana Code § 35-34-1-4(b) window for a defense motion to dismiss closes 20 days before the omnibus date on a felony, 10 days before it on a misdemeanor.

2. Document the alleged victim's statements about wanting to drop the charges (texts, messages, notes on the conversation); this won't force dismissal, but it can support your defense or a plea negotiation.

3. Track every court date and filing shown in the online case system and respond to each one.

4. Give your attorney all relevant evidence, including those victim communications, right away.