Albright v. State, 80A02-9809-CR-737
| Decision Date | 24 March 1999 |
| Docket Number | No. 80A02-9809-CR-737,80A02-9809-CR-737 |
| Citation | 708 N.E.2d 15 |
| Parties | Mark ALBRIGHT, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Mark Albright appeals from the sentence imposed after he pled guilty to two counts of operating while intoxicated, 1 both Class A misdemeanors. Albright presents one issue for our review, which we restate as: whether Albright's sentence exceeded the maximum sentence allowed by statute.
We remand with instructions to reduce Albright's term of probation.
At the time of his sentencing hearing, Albright had been incarcerated for 288 days while awaiting trial. At the sentencing hearing, the judge sentenced Albright to one year for each offense, to be served consecutively. However, the judge reduced the executed portion of Albright's sentence to time served, and placed him on probation for one full year for each offense. Albright appeals.
Albright contends that his sentence exceeds the statutory maximum, because he was placed on probation for one year for each conviction. Operating while intoxicated is a Class A misdemeanor, for which the maximum sentence is one year. IND.CODE § 35-50-3-2 (1993). Our supreme court has held that "a combined term of probation and imprisonment exceeding one year is inconsistent with the maximum term for conviction for a misdemeanor." Smith v. State, 621 N.E.2d 325, 326 (Ind.1993). Thus, if the trial court's sentencing order imposed a term of probation that caused Albright to serve more than one year of combined probation and imprisonment for either of his convictions, the trial court erred.
In ordering Albright's sentence, the trial judge stated that the executed portion of each of Albright's one-year sentences would be reduced to time served. Albright had served 288 days at the time of his sentencing. 2 In addition, Albright was entitled to "credit time," or good time credit, under IND.CODE § 35-50-6-3 (1993). Thus, Albright's time served equaled 576 days.
"Where a defendant is confined during the same time period for multiple offenses for which he is convicted and sentenced to consecutive terms, credit is applied against the aggregate sentence." Ragon v. State, 654 N.E.2d 906, 907 (Ind.Ct.App.1995). Because he had served at least 365...
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Tawdul v. State
...Id. (citing Smith v. State, 610 N.E.2d 265, 272 (Ind.Ct.App. 1993) (Barteau, J., dissenting)) (emphasis added). In Albright v. State, 708 N.E.2d 15, 16 (Ind.Ct.App.1999), this court recently held that the trial court erred by placing Albright on probation for one full year for each of two m......
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Williams v. State, 71A03-0012-PC-472.
...sentence permitted by Indiana Code section 35-50-2-6. A similar set of circumstances was discussed by this court in Albright v. State, 708 N.E.2d 15, 16 (Ind.Ct.App.1999). In that case, the defendant was charged with two counts of operating while intoxicated, both Class A misdemeanors, and ......