Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of                           Mar 08 2013, 9:23 am
establishing the defense of res judicata,
collateral estoppel, or the law of the
case.

ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

JOHN T. WILSON                                  GREGORY F. ZOELLER
Anderson, Indiana                               Attorney General of Indiana

                                                MONIKA PREKOPA TALBOT
                                                Deputy Attorney General
                                                Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

ANDREW ABBOTT,                                  )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )      No. 33A01-1201-CR-16
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                     APPEAL FROM THE HENRY CIRCUIT COURT
                           The Honorable Bob A. Witham, Judge
                    Cause Nos. 33C03-1109-FD-245, 33D02-1105-FD-132



                                       March 8, 2013


                MEMORANDUM DECISION - NOT FOR PUBLICATION


BROWN, Judge
       Andrew Abbott appeals his conviction for receiving stolen property as a class D

felony.1 Abbott raises three issues, which we revise and restate as:

       I.        Whether the court committed fundamental error in permitting the
                 State to refile the charge against him;

       II.       Whether the evidence is sufficient to support his conviction; and

       III.      Whether the trial court erred in denying pre-trial detention credit.

We affirm in part, reverse in part, and remand.

                                                 FACTS

       In August 2010, Matt Huffman, a real estate agent, was hired to help sell a house

owned by the father of Mike McKown. Huffman initially placed a key to the house in a

realtor lock box. At some point in November 2010, Huffman made a copy of the key in

the lock box, placed one of the keys without a tag back in the lock box, and gave the

other key with a tag on it to Mike McKown so that he could have access to the house.

McKown placed the key in his truck, which he parked at his house near the north side of

New Castle, Indiana, and near State Road 3.

       A short time after midnight on December 28, 2010, Nancy Weesner, who lived

along State Road 3 outside the city limits of and to the north of New Castle, Indiana,

observed Abbott outside her home on the other side of State Road 3 who “periodically

would stop and turn around and look the opposite way, like maybe someone was going to

come and get him.” Transcript at 65. Weesner observed that Abbott walked around the

house across the street a couple of times, stood behind some bushes at an adjacent

property, walked around the garage a couple of times, and eventually “just laid down on

       1
           Ind. Code § 35-43-4-2 (Supp. 2009).
                                                   2
the ground and there was snow on the ground.” Id. Weesner called the police and

described her observations.

      Henry County Deputy Sheriff Landon J. Dean arrived at the location and Deputy

Sheriff Jordan Pruett eventually joined him in searching the area. The officers observed

footprints in the snow which led around a residence and garage, located Abbott “against

the garage and/or bushes” or “leaning up against the garage,” and observed a baseball bat

on the ground next to Abbott. Id. at 94. The officers conducted a pat down search of

Abbott and discovered a “labeled key,” which had a tag attached to it which contained the

address of the house owned by McKown’s father, and a yellow Stanley tape measure. Id.

at 83. The officers arrested Abbott. The police contacted the owner of the residence

where Abbott was arrested, and the owner did not personally know Abbott and had not

given him permission to be on the property.

      On December 29, 2010, McKown met at his father’s house with police, Huffman,

and McKown’s property manager. McKown and Huffman opened the lock box and

observed that the key was still in the box. McKown and his property manager searched

the house to make sure that everything was still there. McKown’s truck was parked at his

residence and so he traveled to his home to check the truck for the key. McKown noticed

that the truck, which he had not locked, “had been opened,” that “[t]here was some

paperwork laying on the floor of the truck,” that he did not see his garage door opener or

boat keys, and that a yellow tape measure was missing. Id. at 112. McKown later

identified the key with the tag and the yellow tape measure discovered in Abbott’s

possession as belonging to him. At some point, Abbott sent a letter to McKown stating

                                              3
that he had found the key in a Walmart parking lot and had planned to return the key to

the address on the key.

                               PROCEDURAL HISTORY

       On May 18, 2011, the State charged Abbott with receiving stolen property as a

class D felony and with being an habitual offender under cause number 33D02-1105-FD-

132 (“Cause No. 132”). Specifically, the information alleged that Abbott “did knowingly

retain the property, to-wit: one (1) house key of another person, to-wit: Mike McKown,

said property having been the subject of a theft, to-wit: said property having been

removed from a realtors key box, without the authorization of Mike McKown.”

Appellant’s Appendix at 5. An entry in the chronological case summary (“CCS”) on

May 23, 2011, indicates that a jury trial was scheduled for August 17, 2011.

       On August 17, 2011, the State filed a motion to amend information providing that

it desired to change the wording from “said property having been removed from a realtors

key box” to the wording “said property having been removed from his vehicle.” Id. at

12. The court heard arguments on the motion and found that the State’s requested

amendment appeared to be “more than just kind of a minor change” and that the change

“certainly could affect the defendant’s ability to be prepared to proceed with trial today.”

August 17, 2011 Transcript at 13. The court asked the State if it wished for the court to

dismiss the case without prejudice and to refile the case or for the court to grant the

motion to amend and grant a continuance to the defense in order to prepare for the trial.

Abbott did not object. After a recess, the State asked the court to dismiss the case

without prejudice, and the court granted the motion to dismiss.

                                             4
       On September 7, 2011, the State filed a charging information under cause number

33C03-1109-FD-245 (“Cause No. 245”), alleging that Abbott committed the offense of

receiving stolen property as a class D felony and was an habitual offender. Specifically,

the information alleged that Abbott “did knowingly retain the property, to-wit: one (1)

house key of another person, to-wit: Mike McKown, said property having been the

subject of a theft, in that said property had been removed from his truck, a 1997 burgundy

Chevy truck, without the authorization of Mike McKown.” Appellant’s Appendix at 26.

A jury trial was held on November 16, 2011, and the jury found Abbott guilty of

receiving stolen property as a class D felony.

       Abbott admitted to two prior felony convictions, and the court found him to be an

habitual offender.        The court sentenced Abbott to two and one-half years for the

conviction for receiving stolen property as a class D felony and enhanced the sentence by

three and one-half years for being an habitual offender, to be served in the Department of

Correction (“DOC”). The court ordered Abbott’s sentence under Cause No. 245 to be

served consecutively to his sentence under cause number 33C01-0005-CF-12 (“Cause

No. 12”). The court then stated:

       I will show, at this point, that the three hundred and fifty-one (351) actual
       days credit will be eligible to be applied towards any parole revocation in
       the Circuit Court case.[2] If it turns out that the [DOC] does not allow that
       credit against the parole violation, then I certainly would, upon request of
       the parties or Mr. Abbott himself, show that he would be entitled to [351]
       actual days credit against service in this sentence, but that’s only if the
       [DOC] does not award credit against the parole violation.




       2
           Based upon the abstract of judgment, the court appears to be referring to Cause No. 12.
                                                     5
November 16, 2011 Transcript at 175. The abstract of judgment provides: “Credit time

of 351 actual days to be applied to [Cause No. 12].” Appellant’s Appendix at 37.

       On May 30, 2012, Abbott, pro se, filed a handwritten letter with the trial court

stating that “on or around 2/14/2012 the parole board choose [sic] to void my parole

violation warrant,” that “[f]or whatever reason, which I am very grateful, the board didn’t

give me anymore time,” and that “[i]n light of these events, I am respectfully requesting

that my jail time credit of 351 [days] be allowed to apply to my current committment?”

Id. at 48-49. Abbott, pro se, filed another letter on June 11, 2012, requesting an amended

abstract of judgment showing the credit time applied under Cause No. 245. The State

filed a response stating that Abbott “has provided no proof to establish what he states in

his letter.” Id. at 53. The trial court denied Abbott’s request. Upon Abbott’s request,

this court agreed that Cause No. 132 and Cause No. 245 would be consolidated for

appeal.

                                      DISCUSSION

                                             I.

       The first issue is whether the court committed fundamental error in permitting the

State to refile the charge against Abbott. Abbott argues that the court’s decision to permit

the State to dismiss the charge under Cause No. 132 and refile the charge under Cause

No. 245 substantially prejudiced his rights. Abbott argues that “[i]f the State, after the

Court’s ruling, could not have prevailed at trial, Abbott’s jeopardy rights are affected by

allowing the State to have another bite at the apple” and that “[i]f the State may

circumvent an adverse ruling by simply dismissing and re-filing the original charge,

                                             6
defendant’s [sic] will as a practical matter be unable to avail themselves of legitimate

procedural rights.” Appellant’s Brief at 15. The State maintains that the court did not

commit fundamental error when it allowed the State to dismiss and subsequently refile

the charge against Abbott, that Abbott’s substantial rights were not affected and jeopardy

had not yet attached, that Abbott failed to show that his speedy trial rights were affected

by the dismissal and refiling of the charges, that contrary to Abbott’s argument the State

did not receive an adverse ruling to its motion to amend, and that Abbott “has not shown

that he was prejudiced by the solution the State chose and that he did not ultimately

receive a fair trial.” Appellee’s Brief at 14.

       A prosecuting attorney may obtain a dismissal at any time prior to sentencing, and

the granting of such a motion does not by itself bar a subsequent trial of the defendant for

the same offense. Malone v. State, 702 N.E.2d 1102, 1103 (Ind. Ct. App. 1998) (citing

Ind. Code § 35-34-1-13; Joyner v. State, 678 N.E.2d 386, 393 (Ind. 1997), reh’g denied),

trans. denied. “Absent the attachment of jeopardy, the State’s dismissal of criminal

charges does not preclude it from refiling and prosecuting a charge for the identical

offense.” Id.

       The State may not refile if doing so will prejudice the substantial rights of the

defendant. Id. The State does not necessarily prejudice a defendant’s substantial rights

when, on the refiled information, it amends the original information but charges the same

offense. Id. The State is entitled to amend charges, even as to theory and identity, when

it can be done without prejudicing the substantial rights of the accused. Id. (citations

omitted).

                                                 7
       In this case, the State did not receive an adverse ruling and was not seeking to

“escape the ruling of the original court.” See id. at 1104 (citations omitted); see also

Beason v. State, 690 N.E.2d 277, 280 n.9 (Ind. 1998) (noting that “the prosecutor here

used none of the powers or authority of that office to circumvent any court order or to

prejudice the substantial rights of the defendant.”). Further, Abbott has not demonstrated

that the court permitting the State to refile the charge substantially prejudiced him based

upon the fact that the State alleged in its refiled charging information that the house key

was taken from McKown’s truck rather than the lock box. Our review of the record

shows that the State initially charged Abbott on May 18, 2011 under Cause No. 132; that

on the day of the initially-scheduled jury trial on August 17, 2011, the court dismissed

without prejudice the case due to the State’s request to amend the charging information as

it pertained to the location from which the key had been taken; that the State filed the

amended charging information on September 7, 2011 under Cause No. 245; and that

Abbott’s jury trial was held on November 16, 2011. The record reveals that Abbott was

not deprived of adequate time to prepare a defense. See id. (noting that the defendant’s

trial date was reset and that he had adequate time to prepare a defense). Neither was

Abbott deprived of a fair trial as the record reveals that Abbott presented a defense before

the jury which included an explanation for how he came into possession of the key, and

he cross-examined the State’s witnesses. Abbott has not demonstrated that his substantial

rights were prejudiced by the filing of the amended charging information or that the State

was barred from refiling the receiving stolen property charge. See id. (concluding that



                                             8
the defendant’s rights were not substantially prejudiced by the State’s dismissal and

refiling of the charges).

                                             II.

       The next issue is whether the evidence is sufficient to sustain Abbott’s conviction

for receiving stolen property. In a review of a sufficiency of the evidence claim, we do

not reweigh the evidence or reevaluate the credibility of witnesses. Rohr v. State, 866

N.E.2d 242, 248 (Ind. 2007), reh’g denied. We view the evidence most favorable to the

verdict and the reasonable inferences therefrom and will affirm the conviction if there is

substantial evidence of probative value from which a reasonable jury could find the

defendant guilty beyond a reasonable doubt. Id.

       Identification testimony need not necessarily be unequivocal to sustain a

conviction. Heeter v. State, 661 N.E.2d 612, 616 (Ind. Ct. App. 1996). Elements of

offenses and identity may be established entirely by circumstantial evidence and the

logical inferences drawn therefrom. Bustamante v. State, 557 N.E.2d 1313, 1317 (Ind.

1990). As with other sufficiency matters, we will not weigh the evidence or resolve

questions of credibility when determining whether the identification evidence is sufficient

to sustain a conviction.    Id.   Rather, we examine the evidence and the reasonable

inferences therefrom that support the conviction. Id.

       The offense of receiving stolen property as a class D felony is governed by Ind.

Code § 35-43-4-2, which provides in part that “[a] person who knowingly or intentionally

receives, retains, or disposes of the property of another person that has been the subject of

theft commits receiving stolen property, a Class D felony.” The amended charging

                                             9
information alleged that Abbott “did knowingly retain the property, to-wit: one (1) house

key of another person, to-wit: Mike McKown, said property having been the subject of a

theft, in that said property had been removed from his truck, a 1997 burgundy Chevy

truck, without the authorization of Mike McKown.” Appellant’s Appendix at 26. Thus,

to convict Abbott of receiving stolen property as a class D felony, the State needed to

prove that he knowingly retained McKown’s house key that had been the subject of theft.

      Abbott contends that “the naked possession without proof that the defendant

received the goods knowing they had been stolen will not sustain the charge” and that the

State “failed to prove anything more other than the fact that he merely had the key in his

possession.” Appellant’s Brief at 10. Abbott argues that the owner of the key did not

know it was missing or remember he had the key. Abbott argues that McKown testified

that he had used his truck to plow snow on December 27th, and that he could have

possibly gone to Walmart around this period. Abbott further argues that, while the State

presented aerial views of the location of the homes and neighborhoods, it did not present

evidence as to the exact distances between the location where the key was allegedly

stolen and the location Abbott was discovered. Abbott also argues that witnesses testified

that they were with Abbott when he found the key.

      The State maintains that the evidence was sufficient and that Abbott’s possession

of the key is to be considered along with the other evidence in the case. The State argues

that Abbott was in possession of McKown’s recently stolen key to his parents’ residence,

that the key had been removed from McKown’s truck along with other items, at least one

of which was in Abbott’s possession at the time of the arrest, that the key was clearly a

                                           10
key to a residence because it had a label on it with the residence’s address, and that there

is no reasonable explanation for Abbott’s legal possession of such a key. The State

further argues that the jury clearly rejected the explanation that Abbott found the key in a

Walmart parking lot. The State asserts that Abbott’s unexplained possession of a key

which had been stolen from a truck along with other items, coupled with the fact that the

key was marked as a key to a residence to which Abbott had no connection, is

circumstantial evidence that Abbott knew the key had been stolen.

       While the mere unexplained possession of recently stolen property standing alone

does not automatically support a conviction for theft or receiving stolen property, such

possession is to be considered “along with the other evidence in a case, such as how

recent or distant in time was the possession from the moment the item was stolen, and

what are the circumstances of the possession (say, possessing right next door as opposed

to many miles away).” Donovan v. State, 937 N.E.2d 1223, 1226 (Ind. Ct. App. 2010)

(quoting Fortson v. State, 919 N.E.2d 1136, 1143 (Ind. 2010)), trans. denied. The fact of

possession and all the surrounding evidence about the possession must be assessed to

determine whether any rational trier of fact could find the defendant guilty beyond a

reasonable doubt. Id.; see also Girdler v. State, 932 N.E.2d 769, 772-773 (Ind. Ct.

App. 2010) (noting that, in the context of charges for theft or receiving stolen property,

possession of recently stolen property is to be considered along with the other evidence in

a case and the circumstances of the possession). The trier of fact must assess all of the

evidence instead of focusing upon one piece of evidence, such as possession of recently

stolen property. Donovan, 937 N.E.2d at 1226.

                                            11
      In this case, Abbott’s possession of the key to the house of McKown’s father is to

be considered in light of the other evidence in the case. The evidence most favorable to

the verdict reveals that Abbott was observed and ultimately apprehended a short time

after midnight on December 28, 2010, near the home of Weesner, that Abbott had walked

around the residence and garage and was “against the garage and/or bushes” or “leaning

up against the garage,” see Transcript at 94, and the officers discovered that Abbott was

in possession of a house key with the tag on it and a yellow Stanley tape measure which

had been taken from McKown’s truck. The State introduced an exhibit containing an

aerial photograph depicting the location of McKown’s residence where his truck was

parked, the location where Abbott was arrested near Weesner’s residence on State Road

3, and the relative distance and relation between the two locations. McKown testified

that when he checked his truck on December 29, 2010, he noticed that the truck, which

he had not locked, “had been opened,” that “[t]here was some paperwork laying on the

floor of the truck,” that he did not see his garage door opener or boat keys, and that a

yellow tape measure was missing. Transcript at 112. When asked when he recalled “last

being in the truck,” McKown testified “[t]he night before the incident.” Id. at 113.

Abbott presented testimony that he had found the key in a Walmart parking lot. When

McKown was asked whether he recalled going to Walmart at any time around Christmas

2010, McKown testified that he did not recall.

      To the extent that Abbott requests that we reweigh the evidence or reevaluate the

credibility of witnesses, we cannot do so. See Rohr, 866 N.E.2d at 248. Further, we note



                                           12
that, in Gibson v. State, the Indiana Supreme Court discussed theft and receiving stolen

property and held:

       If the State meets its burden of proof with respect to all the necessary
       elements of either the theft or receiving stolen property offense as alleged
       in the charging instrument, it is of no consequence whether the accused was
       the person who actually took the stolen property from its authorized
       possessor because, once this burden is met, the State has proved that the
       accused, whether actual thief or not, has done precisely what is forbidden
       by both subsection (a) and (b) [of Ind. Code § 35-43-4-2]—knowingly or
       intentionally exercising unlawful control over property of another with a
       purpose to deprive.

643 N.E.2d 885, 892 (Ind. 1994) (footnote omitted).

       While the jury could have made different inferences from the evidence, we cannot

say that the inferences made by the jury as the trier of fact here were unreasonable.

Based upon the evidence, a rational factfinder could have found that Abbott knowingly

retained the property of McKown that had been the subject of theft and knowingly

exercised unlawful control over the property with a purpose to deprive.          Thus, we

conclude that evidence of probative value exists from which the jury could have found

Abbott guilty beyond a reasonable doubt of receiving stolen property as a class D felony.

See Donovan v. State, 937 N.E.2d 1223, 1226-1227 (Ind. Ct. App. 2010) (citing Fortson

and holding that the evidence was sufficient to sustain the defendant’s conviction for auto

theft), trans. denied.

                                           III.

       The next issue is whether the trial court erred in denying Abbott’s request for pre-

trial detention credit. Abbott argues that a “trial judge must give pre-trial credit time

immediately, not later,” that the court “should have immediately applied the credit time

                                            13
to the charge that Abbott was being sentenced on, not to a possible unrelated parole

violation,” and that Abbott is entitled to the 351 days credit toward his sentence in Cause

No. 245. Appellee’s Brief at 12-13. The State argues that “[i]f a defendant receives

consecutive terms, he or she is only allowed credit time against the total or aggregate of

the terms,” that Abbott “of course, is entitled to the 351 days somewhere, and he is not

without remedy,” and that Abbott “has recourse under Indiana Post-Conviction Rule 1,

Section 1(a)(3),”3 but that Abbott “has to show the court with proof other than a self-

serving statement that he did not receive credit in [Cause No. 12].” Appellee’s Brief at

11.

        In Tate v. State, the defendant was charged in 1999 with several offenses arising

out of his operating a vehicle while intoxicated and later pled guilty to those charges and

was placed on probation. 813 N.E.2d 437, 437 (Ind. Ct. App. 2004). In 2003, the

defendant was charged with operating a vehicle after being adjudged an habitual traffic

offender and another charge and days later was released on his own recognizance. Id. In

June 2003, the State claimed that the defendant had violated the probation he received

after he pled guilty in 1999. Id. In August 2003, the defendant admitted the probation

violation and also pled guilty to operating a vehicle after being adjudged an habitual

traffic offender. Id. In September 2003, the trial court sentenced the defendant to four

and one-half years incarceration for the probation violation and three years upon the

guilty plea conviction. Id. The trial court did not award the defendant any credit time for

        3
          Ind. Post-Conviction Rule 1, Section 1(a) provides in part: “Any person who has been convicted
of, or sentenced for, a crime by a court of this state, and who claims: . . . (3) that the sentence exceeds the
maximum authorized by law, or is otherwise erroneous; . . . may institute at any time a proceeding under
this Rule to secure relief.”
                                                     14
his pretrial incarceration but rather “stated that the credit time would be saved for the

disposition of a pending case.” Id. at 437-438. At the time of his sentencing, the

defendant had entered no plea on the pending charge. Id. at 438.

        On appeal, the defendant claimed that the trial court was without authority to

“save” the pretrial detention credit time and apply it upon disposition of the pending

charge. Id. This court observed the requirements of Ind. Code § 35-38-3-2, which

provided in part:

        (a)       When a convicted person is sentenced to imprisonment, the court
                  shall, without delay, certify, under the seal of the court, copies of the
                  judgment of conviction and sentence to the receiving authority.

        (b)       The judgment must include:

                                              *****

                  (4)     The amount of credit, including credit time earned, for
                          time spent in confinement before sentencing. . . .

(Burns Code Ed. Repl. 1998) (subsequently modified by Pub. L. No. 119-2008, § 17 (eff.

July 1, 2008); Pub. L. No. 106-2010, § 12 (eff. July 1, 2010)).4 The court also observed

the requirements of Ind. Code § 35-50-60-35 and that, in Stephens v. State, 735 N.E.2d


        4
          The relevant portions of the current version of Ind. Code § 35-38-3-2 are substantively similar
to the version discussed in Tate.
        5
            At the time, Ind. Code. § 35-50-6-3 provided:

        (a)       A person assigned to Class I earns one (1) day of credit time for each day
                  the person is imprisoned for a crime or confined awaiting trial or
                  sentencing.

        (b)       A person assigned to Class II earns one (1) day of credit time for every
                  two (2) days the person is imprisoned for a crime or confined awaiting
                  trial or sentencing.

        (c)       A person assigned to Class III earns no credit time.
                                                     15
278, 284 (Ind. Ct. App. 2000), trans. denied, the court noted that determination of a

defendant’s pretrial credit time “is dependent upon two factors: (1) pretrial confinement

and (2) the pretrial confinement being a result of the criminal charge for which the

sentence is being imposed.” Tate, 813 N.E.2d at 438. The court then held:

                Given the clear mandate set forth in I.C. § 35-38-3-2 that the trial
        court must provide a copy of the judgment of conviction and sentence to
        the receiving authority and that it must include the amount of credit time
        earned for time spent in confinement before sentencing, in addition to case
        law which has consistently held that the pretrial credit must arise from
        pretrial confinement for the criminal charge for which the defendant is
        sentenced, we conclude that the trial court erred in failing to award Tate his
        credit time when he was sentenced. Thus, we remand to the trial court to
        revise the sentence so that [the defendant] receives the credit time which he
        earned. In so doing, we recognize that we do not know whether any
        subsequent action has been taken in regard to the third charge which was
        pending at the time of [the defendant’s] sentencing. If [the defendant] has
        been sentenced upon that charge, it may very well be that the credit time
        was applied to that charge. If such is the case, the sentence upon that
        charge will have to be amended to reflect any changes made to the prior
        sentence so that [the defendant] does not receive double credit, which was
        appropriately the trial court’s concern . . . .

Id. at 439.

        Ind. Code. § 35-38-3-2 (Supp. 2010) requires that a judgment include the amount

of credit time a defendant receives. Specifically, subsection (b) provides: “The judgment

must include: . . . (4) the amount of credit, including credit time earned, for time spent in

confinement before sentencing . . . .” See also Bischoff v. State, 704 N.E.2d 129, 130

(Ind. Ct. App. 1998) (“Credit is to be applied for time spent in confinement that is the

result of the charge for which the defendant is being sentenced.”) (citing Willoughby v.

State, 626 N.E.2d 601, 602 (Ind. Ct. App. 1993)), trans. denied.


(Burns Code Ed. Repl. 1998) (subsequently modified by Pub. L. No. 80-2008, § 2 (eff. July 1, 2008)).
                                                  16
       In this case, the trial court ordered Abbott’s sentence for his conviction under

Cause No. 245 to be served consecutively to his sentence under Cause No. 12 and

ordered that Abbott’s credit time of 351 actual days be applied to his sentence under

Cause No. 12 unless the DOC did not allow the credit under that cause number. Based

upon Ind. Code. § 35-38-3-2 and Tate and the cases cited above, we conclude that the

court erred in ordering that Abbott’s credit time be applied to his sentence or pending

revocation under Cause No. 12. Therefore, we reverse on this issue and remand with

instructions for the trial court to revise the sentence which Abbott received to reflect that

he is entitled to have the credit time applied to his sentence under Cause No. 245 and, if

there is any evidence that any of the credit time was applied to any sentence or revocation

under Cause No. 12, to make any revisions necessary so that Abbott does not receive

double credit. See Tate, 813 N.E.2d at 439.

       For the foregoing reasons, we affirm Abbott’s conviction for receiving stolen

property as a class D felony and reverse and remand for proceedings consistent with this

opinion to reflect that Abbott is entitled to pretrial detention credit under Cause No. 245

to the extent he would not receive double credit.

       Affirmed in part, reversed in part, and remanded with instructions.

BAILEY, J., and VAIDIK, J., concur.




                                             17
