ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
ANDREW J. BALDWIN JEFFREY A. MODISETT
Franklin, Indiana Attorney General of Indiana
JAMES B. MARTIN
Deputy Attorney General
COURT OF APPEALS OF INDIANA
BRANDON WEAVER, )
vs. ) No. 03A01-9910-CR-349
STATE OF INDIANA, )
APPEAL FROM THE BARTHOLOMEW CIRCUIT COURT
The Honorable Stephen Heimann, Judge
Cause No. 03C01-9411-CF-1180
March 29, 2000
OPINION - FOR PUBLICATION
Appellant-defendant Brandon Weaver (Weaver) challenges the trial courts denial of his motion for
pre-sentence jail time credit.
We reverse and remand for further proceedings.
Weaver presents a single issue for our review, namely, whether the trial court
erred in deeming his motion for pre-sentence jail time credit barred by the
doctrine of res judicata.
Facts and Procedural History
On November 7, 1994, the State charged Weaver in the Bartholomew Circuit Court
(the trial court) with two counts of robbery
as Class B felonies.
At that time, Weaver was incarcerated in another county on charges unrelated to
the Bartholomew County offenses and had been so since August 23, 1994.
On November 9, 1994, the trial court issued a warrant for Weavers arrest
on the Bartholomew County charges, which was ultimately served on July 19, 1995.
On February 16, 1996, Weaver pled guilty pursuant to a plea agreement to
the two counts of robbery. On April 22, 1996, the trial court
sentenced him to fifteen years on each count with five years suspended from
each, and ordered that the sentences be served concurrent with each other and
the sentences previously imposed in four other counties.
In keeping with the
pre-sentence investigation reports recommendation, the trial court did not award Weaver any credit
for time served prior to sentencing.
In April 1997, Weaver filed a pro se motion for pre-sentence jail time
credit of 609 days, which the trial court summarily denied. He did
not appeal the courts ruling, but retained an attorney who filed another motion
for pre-sentence jail time credit in January 1999, this time for 277 days;
this, too, the court summarily denied. The trial court also denied Weavers
subsequent motion to correct error, finding that because Weaver had sought jail time
credit in 1997 and the issue had been previously adjudicated, he was barred
from filing a second Motion For Credit Time by res judicata. Weaver
Discussion and Decision
Weaver contends that the trial court erred in summarily denying his motion for
pre-sentence jail time credit on principles of res judicata. In particular, he
urges that a defendant who has not been awarded proper credit time under
Indiana Code Section 35-50-6-3 may seek review of this error at any time,
because a defendant should not and cannot be incarcerated for any duration longer
than that allowed by law. We agree.
When interpreting statutory language, the fundamental rule is that words and phrases should
be given their plain, ordinary, and usual meaning. We do not trim
the sails of legislative intent.
Nutt v. State, 451 N.E.2d 342, 344
(Ind. Ct. App. 1983) (citations omitted). Thus, when Indiana Code Section 35-50-6-3
provides, without qualification or exception, that a person imprisoned for a crime or
confined awaiting trial or sentencing earns one (1) day of credit time for
each day he is imprisoned for a crime or confined awaiting trial or
sentencing, we must assume from the plain language of this provision that a
trial court has no discretion in the granting or denial of pre-sentence jail
time credit. See id.; see also Williams v. State, 178 Ind. App.
163, 167, 381 N.E.2d 1256, 1259 (1978) (construing predecessor statute which read, When
sentencing any person convicted of a crime the sentencing court shall order that
the sentenced person be given credit [for time served prior to sentencing], as
imparting no discretion on a trial court with respect to granting pre-sentence jail
time credit). Indiana Code Section 35-50-6-3 sets forth in no uncertain terms
that a person confined awaiting trial or sentencing is statutorily entitled to one
day of credit for each day he is so confined; therefore, pre-sentence jail
time credit is a matter of statutory right, not a matter of judicial
discretion. See 24 C.J.S. Criminal Law § 1571 (1989) (observing that in
many jurisdictions, the right to jail time credit is statutory, and that courts
have even held that credit for time previously served is constitutionally mandated by
the double jeopardy clause of the Fifth Amendment) (citations omitted).
This construction is not only consistent with the basic precepts of statutory interpretation,
but also with Indianas treatment of pre-sentence imprisonment as a form of punishment
and the proposition that credit time statutes, as remedial legislation, should be liberally
construed in favor of those benefited by the statute.
See Nutt, 451
N.E.2d at 344. Moreover, a trial courts sentencing authority is only that
which is conferred by the legislature, and it does not possess the power
to impose sentences beyond the statutorily prescribed parameters. See Johnson v. State,
654 N.E.2d 788, 790 (Ind. Ct. App. 1995) (noting that legislature has exclusive
power to pass statutes defining and punishing crimes), trans. denied; Lockhart v. State,
671 N.E.2d 893, 904 (Ind. Ct. App. 1996) (noting that although trial court
has broad discretion in sentencing, it must act within statutorily prescribed limits); see
also 24 C.J.S. Criminal Law § 1459. Indeed, a sentence that violates
express statutory authority is facially defective. See Gressel v. State, 653 N.E.2d
139, 139 (Ind. Ct. App. 1995); Lockhart, 671 N.E.2d at 904 (concluding that
a sentence which is contrary to or violative of the penalty mandated by
statute is an illegal sentence); see also 24 C.J.S. Criminal Law § 1459
(observing that a sentence not permitted by statute is void).
In light of these principles, the trial court erred when it summarily rejected
Weavers motion for pre-sentence jail time credit as being barred by the doctrine
of res judicata. We conclude that
any time a defendant whose liberty
has been restricted through imprisonment or confinement requests a trial court to reconsider
its previous award of jail time credit, and the defendants motion in this
regard identifies a sufficient factual basis for his eligibility, the court must address
the merits of such motion.
Cf. Lockhart, 671 N.E.2d at 904 (holding
that it is the general if not unanimous rule that a trial court
has the power to vacate an illegal sentence and impose a proper one);
cf. also Devaney v. State, 578 N.E.2d 386, 389 (Ind. Ct. App. 1991)
(holding that it is the duty of appellate courts to bring illegal sentences
Here, Weavers motion alleged that his arrest warrant was served on July 19,
1995, and that he was sentenced on April 22, 1996, for a total
of 278 days of pre-sentence confinement.
The record further reflects that Weaver
was ordered to serve his Bartholomew County sentence concurrent with the sentences previously
imposed in four other counties. It is well settled that where a
person incarcerated awaiting trial on more than one charge is sentenced to concurrent
terms for the separate crimes, [Indiana Code Section 35-50-6-3] entitles him to receive
credit time applied against each separate term. However, where he receives consecutive
terms he is only allowed credit time against the total or aggregate of
the terms. Bryant v. State, 446 N.E.2d 364, 365 (Ind. Ct. App. 1983)
(citing Simms v. State, 421 N.E.2d 698, 701-02 (Ind. Ct. App. 1981)) (emphasis
added). Thus, because Weaver is serving concurrent terms for separate crimes, he
is entitled to a credit against his Bartholomew County sentence for the time
he spent incarcerated prior to sentencing on the Bartholomew County charges.
Weavers motion for pre-sentence jail time credit provided sufficient information to create an
issue which the court should have addressed. The trial court erred when
it summarily denied his motion for credit time and determined it was barred
by the doctrine of res judicata. As such, we reverse the trial
courts denial of pre-sentence jail time credit and remand for an assessment of
the proper number of credit days to which Weaver is entitled.
Reversed and remanded for further proceedings consistent with this opinion.
NAJAM, J., and ROBB, J., concur.
In a nutshell, the doctrine of res judicata bars relitigation of
a claim after a final judgment has been rendered, when the subsequent action
involves the same claim between the parties.
See Shumate v. State, 718
N.E.2d 1133, 1135 (Ind. Ct. App. 1999).
See Ind. Code § 35-42-5-1 (robbery while armed with a deadly
It is unclear from the record in which county Weaver was
incarcerated and for what duration. The trial courts abstract of judgment reflects
that sentences had been previously imposed upon him in Hendricks, Montgomery, Morgan, and
See footnote 3.
Neither the pre-sentence investigation report nor the transcript of the sentencing
hearing was included in the record before us.
Footnote: Initially, we observe that Weaver fails to present cogent argument or
cite to any legal authority in support of his arguments on appeal.
See Ind. Appellate Rule 8.3(A)(7). He therefore waives review of those arguments.
See Hough v. State, 690 N.E.2d 267, 275 (Ind. 1997). Nevertheless,
we address the merits of Weavers appeal given the liberty interests at stake
in light of his continued incarceration.
This is not to say that a trial court must address
the merits of every pre-sentence jail time credit motion filed by a defendant,
but only those presenting a legitimate issue with respect to credit which are
supported by the facts of the case and existing legal theories, thus triggering
the need to reconsider an award of credit. By way of illustration,
a trial court may summarily deny a motion for pre-sentence jail time credit
that provides no information or factual basis from which the court can determine
whether credit time is or may be due; one that makes only bald
assertions of error or entitlement to credit time; or one that advances a
theory of eligibility not recognized by our existing case law interpreting Indiana Code
Footnote: Weavers motion actually requests 277 days of pre-sentence jail time credit.