FOR PUBLICATION
ATTORNEY FOR APPELLANT:                    ATTORNEYS FOR APPELLEE:

JEREMY M. NOEL                             GREGORY F. ZOELLER
Monroe County Public Defender              Attorney General of Indiana
Bloomington, Indiana
                                           J.T. WHITEHEAD
                                           Deputy Attorney General
                                           Indianapolis, Indiana

                                                                         FILED
                                                                     Feb 08 2012, 9:57 am
                             IN THE
                   COURT OF APPEALS OF INDIANA                               CLERK
                                                                           of the supreme court,
                                                                           court of appeals and
                                                                                  tax court




JOEY JENNINGS,                             )
                                           )
      Appellant,                           )
                                           )
             vs.                           )       No. 53A01-1010-CR-541
                                           )
STATE OF INDIANA,                          )
                                           )
      Appellee.                            )


                   APPEAL FROM THE MONROE CIRCUIT COURT
                       The Honorable Kenneth G. Todd, Judge
                          Cause No. 53C03-0906-CM-2250


                                February 8, 2012

         OPINION ON PETITION FOR REHEARING – FOR PUBLICATION

MATHIAS, Judge
       The State petitions for rehearing of our opinion in Jennings v. State, 956 N.E.2d

203 (Ind. Ct. App. 2011). We grant the petition for the limited purpose of addressing the

State’s argument that our holding conflicts with a prior opinion of our supreme court, but

reaffirm our earlier decision in all respects.

       For his Class B misdemeanor conviction, Jennings received the maximum

sentence of 180 days, with thirty days executed, 150 days suspended, and 360 days of

probation. We concluded that this sentence violated Indiana Code section 35-50-3-1(b)

(2004), which provides that when a court suspends any portion of a misdemeanor

sentence, “it may place the person on probation . . . for a fixed period of not more than

one (1) year, notwithstanding the maximum term of imprisonment for the misdemeanor .

. . . However, the combined term of imprisonment and probation for a misdemeanor may

not exceed one (1) year.”       Specifically, we held that the statutory phrase “term of

imprisonment” included both the executed and suspended portions of a misdemeanor

sentence, and because Jennings was sentenced to a 180-day term of imprisonment

(composed of thirty executed days and 150 suspended days), his term of probation could

not exceed 185 days. Jennings, 956 N.E.2d at 208.

       In support of this holding, we relied on this court’s previous decision in Collins v.

State, 835 N.E.2d 1010, 1018 (Ind. Ct. App. 2005), trans. denied, which interpreted the

current version of Indiana Code section 35-50-3-1(b) and reached the same conclusion.

See also Copeland v. State, 802 N.E.2d 969, 972 n.4 (Ind. Ct. App. 2004) (reasoning that

a “term of imprisonment” for the purposes of Indiana Code section 35-50-3-1(b),


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includes both executed and suspended terms of imprisonment).                  We also found

instructive our supreme court’s decision in Mask v. State, 829 N.E.2d 932 (Ind. 2005). In

Mask, our supreme court interpreted the statutory phrase “terms of imprisonment,” as it

appears in another sentencing statute, to include both the executed and suspended

portions of a defendant’s sentence. Id. at 936 (citing Ind. Code § 35-50-1-2(c) (2004)).

       On rehearing, the State insists that our interpretation of Indiana Code section 35-

50-3-1(b) “irreconcilably conflicts with our [s]upreme [c]ourt’s decision in Smith v.

State, 621 N.E.2d 325 (Ind. 1993).” Rehearing Petition at 1. However, the State ignores

the fact that in Smith, our supreme court interpreted a prior version of Indiana Code

section 35-50-3-1(b) that is materially different than the current version.

       The version of the statute in effect when our supreme court decided Smith

provided that “whenever the court suspends a sentence for a misdemeanor, it may place

the person on probation . . . for a fixed period of not more than one (1) year.” 621 N.E.2d

at 325. Unlike the current version of the statute, this version placed no limitation on the

combined term of imprisonment and probation. The issue in Smith was whether the

language of this statute permitted a trial court to impose a period of probation extending

beyond the maximum sentence for the offense. Id. The court concluded that it did not,

reasoning that “a combined term of probation and imprisonment exceeding one year is

inconsistent with the maximum term for conviction for a misdemeanor.” Id. at 326. The

court held that “[t]he trial court has the option . . . to suspend the sentence in whole or in

part and to place the defendant on probation, so long as the combination of the executed


                                              3
sentence and the probationary period do not exceed the maximum statutory sentence for

that offense.” Id. (emphasis added, quotations omitted, alteration in original).

        In 2001, Indiana Code section 30-50-3-1(b) was amended to provide that a trial

court may place a misdemeanant on probation for one year, notwithstanding the

maximum term of imprisonment for the offense, so long as the combined term of

imprisonment and probation does not exceed one year. See Ind. Legis. Serv. P.L. 90-

2001, § 1. Thus, the current statute supersedes the holding of Smith because it

specifically allows for the imposition of a term of probation extending beyond the

maximum sentence for a misdemeanor, provided that the combined term of imprisonment

and probation does not exceed one year.1 Moreover, the key statutory phrase “term of

imprisonment,” on which our analysis in this case turned, is notably absent from the

previous version of the statute interpreted in Smith. Thus, Smith is not good law for the

purposes of interpreting the current version of Indiana Code section 30-50-3-1(b), and

this court’s precedent in Collins and Copeland is controlling—especially in light of our

supreme court’s interpretation of similar language appearing in another sentencing statute

in Mask, 829 N.E.2d at 936 (interpreting the phrase “terms of imprisonment,” as it

appears in Indiana Code section 35-50-1-2, “to include any period of incarceration a

defendant is sentenced to, even if all or a portion of that period of time is suspended”).

1
 We note that Jennings was convicted of a Class B misdemeanor, for which the maximum sentence is 180 days, and
he received an executed sentence of thirty days. In Smith, the court held that the combination of the executed
sentence and probationary period could not exceed the maximum sentence for the offense. 621 N.E.2d at 326.
Thus, if we were to accept the State’s invitation to apply the rule of Smith to the case at hand, we would be
constrained to conclude Jennings’s probationary period must be limited to 150 days—a period thirty-five days
shorter than the maximum probationary period allowed under our interpretation of the current statute. See Jennings,
956 N.E.2d at 208 (remanding for recalculation of Jennings’s term of probation, “not to exceed 185 days”).

                                                        4
       Additionally, the State’s argument that Smith stands for the proposition that a

suspended sentence and a term of probation “may be served simultaneously” in a manner

similar to concurrent sentences is legally unsound. See Rehearing Petition at 3. The

Smith court said no such thing, either expressly or by implication. The version of Indiana

Code section 30-50-3-1(b) in effect at the time Smith was decided provided that when

any portion of a misdemeanor sentence was suspended, the trial court could place the

misdemeanant on probation for one year.         Read alone, this language would ostensibly

permit the imposition of one year of probation even where a misdemeanant received the

maximum sentence with only a small portion suspended—effectively extending the

misdemeanant’s period of punishment far beyond the maximum sentence for the offense.

In holding that the combined executed sentence and term of probation could not exceed

the maximum sentence for the offense, our supreme court simply placed a limitation on

the otherwise broad language of the previous version Indiana Code section 30-50-3-1(b)

by interpreting it in light of other sentencing statutes.

       Moreover, by definition, a suspended sentence is never “served” unless and until

the suspension is revoked. See Mask, 829 N.E.2d at 936. And, with the exception of

probationary terms served on home detention, a defendant receives no credit toward his

suspended sentence for days spent on probation. See Senn v. State, 766 N.E.2d 1190,

1199 (Ind. Ct. App. 2002). Indeed, if Jennings’s probation were to be revoked on the last

day of his probationary term, the trial court would have the discretion to order him to

serve the entirety of his suspended sentence. Thus, a suspended sentence is not “served


                                               5
simultaneously” with a term of probation, and the State’s attempt to analogize suspended

and concurrent sentences is unpersuasive.

      We affirm our original decision in all respects.

BAILEY, J., and CRONE, J., concur.




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