Bischoff v. StateBischoff v. State
- Reporters:
- , ,
- Before:
- Robb
OPINION
ROBB, Judge.Charles Bischoff admitted a violation of probation and was ordered incarcerated for 488 days, the remainder of his sentence from the underlying case. The trial court credited Bischoff with forty-six days served. Bischoff appeals the trial cоurt’s allowance of credit time and requests immediate release from custody. We affirm.
Issue
Bischoff presents for our reviеw the following restated issue: whether he is entitled to credit for time spent incarcerated from the date of his arrest for the violation of probation through disposition, when he was simultaneously incarcerated on another charge.
Facts and Procedural History
Bisсhoff entered a plea of guilty in March 1995, to Operating a Vehicle while Intoxicated as a Class D felony, and was sentenced by the Huntington County Superior Court to one and one-half years incarceration, with sixty days to be executed and the remainder to be served on probation (the “OWI case”). In January of 1996, Bischoffs probation was transferred to Wabash Cоunty. On March 26, 1996, Bischoff reported for an appointment with a Wabash County probation officer and took an aleо-sensor test at the request of the officer which registered positive for alcohol. Bischoff was then escorted to the Wabash County sheriffs department and given a breathalyzer test which registered .13% blood alcohol content. While at thе sheriffs department, Bischoff notified the officer conducting the test that he was in possession of a handgun. The handgun was remоved from his possession and he was held at the Wabash County jail on the charge of Carrying a Handgun without a License having had а Felony Conviction within Fifteen Years, a Class C felony (the “handgun case”). Both consuming alcohol and carrying a weapon were in violation of the terms of Bischoffs probation.
On April 11,1996, a warrant was issued by Huntington Superior Court on a Petition to
Discussion and Decision
Bischoff argues that the trial court errеd in refusing to grant him jail time credit in Huntington County for time served in Wabash County and later, in the Indiana Department of Correction, in connection with the handgun ease. Bischoff believes that he should have received credit in Huntington County from April 15, 1996, the date the warrant was served on the probation violation, until he was sentenced on May 11, 1998, because he was confined as a result of the warrant. Bischoff therefore believes that he has more than served his time on the probation revocation and is entitled to immediate release.
A person imprisoned for a crime or confined awaiting trial or sentencing earns one day of credit time for each day he is confined.
Bischoff has not demonstrated that the time he spent confined in the Wabash County jail оr the Indiana Department of Correction after he was served with the Huntington County arrest warrant was a result of the OWI case. He has provided no evidence to show that the warrant served as a “hold” which would have caused Wabash County to retain custody of him even if no charges had been pending in Wabash County. See Richeson v. State, 648 N.E.2d 384, 391 (Ind.Ct.App.1995), trans. denied (holding that the Porter County trial court did not err in refusing to grant thе defendant jail time credit in Porter County for time served in Lake County even after Porter County issued a detainer on him). The time Bisсhoff spent incarcerated in Wabash County and the Department of Correction was a result of the handgun case, and he was therefore not entitled to credit for that time in the OWI case.
Moreover, Indiana Code section 35-50-1-2(b) provides in pertinent part:
If, after being arrested for one (1) crime, a person commits another crime;
(1) before the datе the person is discharged from probation, parole, or a term of imprisonment imposed for the first crime;
the terms оf imprisonment for the crimes shall be served consecutively, regardless of the order in which the crimes are tried and sentences are imposed.
The statutory mandate is clear: when these circumstances occur, the sentences fоr the offenses shall be served consecutively. It is beyond dispute that Bischoffs offenses occurred within the coveragе of this section. Because sentence was imposed in the handgun case before Bischoffs probation was revoked in the OWI ease, the court in the OWI case was required upon revoking Bischoffs probation to require that the sentences be served consecutively. If Bischoff were to be granted credit in the OWI case for the time
The trial court in the OWI case did not err in refusing to grant Bischoff jail time credit in the OWI case for time served as a result of the handgun case.
Affirmed.
BAKER and GARRARD, JJ., concur.