APPELLANT PRO SE: ATTORNEYS FOR APPELLEE:
STEPHEN VIA KAREN M. FREEMAN-WILSON
Bunker Hill, Indiana Attorney General of Indiana
NANDITA G. SHEPHERD
Deputy Attorney General
COURT OF APPEALS OF INDIANA
STEPHEN VIA, )
vs. ) No. 89A01-0008-PC-265
STATE OF INDIANA, )
APPEAL FROM THE WAYNE SUPERIOR COURT
The Honorable Gregory A. Horn, Judge
Cause No. 89D02-9503-CF-13
November 13, 2000
OPINION - FOR PUBLICATION
Stephen Via was placed on probation and released on his own recognizance following
prior criminal proceedings. Ultimately, Via was found to have violated the terms
of his probation and was ordered incarcerated. Via appeals the trial court's
determination that he was entitled to no credit for time served while on
probation. We affirm.
Via raises three issues for our review which we consolidate and restate as
whether the trial court erred in denying his motion for credit for time
served by refusing to give him credit for the time he was on
Facts and Procedural History
On December 15, 1999, the trial court revoked Via's probation and ordered that
he serve three years at the Department of Correction, followed by one year
of probation. The trial court granted no credit time for the time
that Via was on probation prior to the revocation. Via filed a
motion for credit time asserting that he deserved credit time for the time
he was on probation. The trial court denied the motion, stating that
Via had been "released on his own recognizance on these proceedings and was,
therefore, properly given no credit time." R. 28. Via again filed
a petition for credit time which the trial court also denied. Via
then filed a praecipe with the trial court and now appeals.
Discussion and Decision
Via argues that while he was on probation he was still in custody
and therefore is entitled to receive credit for the time he spent on
We note that Via was released on his own recognizance.
Because the record does not indicate otherwise, and Via does not allege otherwise
in his brief, we will assume that Via was not subject to home
detention, a community corrections program, or any other type confinement while on probation.
With respect to how credit time (formerly known as "good time" credit) applies
to probation, the general proposition is that "a person does not earn
credit time while on parole or probation." Ind. Code § 35-50-6-6.
Therefore, Via did not earn credit time while he was on probation.
However, with respect to credit for time served, we have decided that when
a probationer is restricted of his liberty or subjected to some type of
confinement, he is entitled to credit for the time he served. See
Dishroon v. State, 722 N.E.2d 385 (Ind. Ct. App. 2000) (holding that a
defendant ordered to serve home detention as a condition of probation is entitled
to credit time); see also Ind. Code § 35-38-2.6-6 ("[a] person who is
placed in a community corrections program . . . is entitled to earn
credit time."). Here, Via was on probation but was not in custody;
he was in no way confined nor was his liberty restricted while he
was released on his own recognizance. Therefore, the trial court did not
err and Via was not entitled to credit for the time he spent
We hold that the trial court did not err in denying Via credit
for the time he served on probation. Therefore, we affirm.
MATHIAS, J., and MATTINGLY, J., concur.
With respect to the credit a defendant earns, credit for time
served is different than "credit time," formerly referred to as "good time."
Credit for time served is calculated as a day for day. "Credit
time" refers to the credit to which a defendant is entitled in addition
to the days actually spent in confinement. In his brief, Via uses
both the term "credit time" as well as "credit for time served," presumably
meaning credit for time served in both instances. As will be discussed
below, Via is entitled to neither credit for time served nor credit time.
The State argues that the record of proceedings is incomplete and
therefore this appeal should be waived. We note, however, that the trial
court ruled that this appeal would proceed at public expense and detailed specific
documents to be provided for the record. These documents do, indeed, provide
us with enough information to decide the issue at hand: whether Via
was properly denied credit time for the time he was on probation and
therefore, we do have enough information to decide this appeal on the merits.