concurring in result in part.
With respect to Issue I, I agree that the statement made by Lori to the investigating officers was appropriately admitted. I do not, however, agree that it was admissible pursuant to Ind. Evidence Rule 803(5). The facts of this case demonstrate the dangers inherent in admitting a prior inconsistent statement as a “rule of necessity” under the guise of an 803(5) recorded recollection. See Williams v. State (1998) Ind.App., 698 N.E.2d 848, 852 et seq., (Sullivan J., dissenting).
With regard to Issue V, I believe it clear that Impson was entitled to have a bond set upon the charge of probation violation. Therefore, he was, perhaps erroneously, detained in custody from July 4,1998, until the date of his convictions upon the battery charges, in October, 1998. At this juncture, however, there is no relief which can be afforded. The denial of bail does not taint the battery convictions nor the probation revocation itself.
Nevertheless, I disagree with the basis for the majority’s resolution of the bail issue. The majority holds that Impson was not entitled to a belated appeal from the probation revocation and that, therefore, the bail issue, which is subsumed in the revocation judgment itself, is likewise precluded. The basic premise is flawed.
The seminal case in this area is Howard v. State (1995) Ind., 653 N.E.2d 1389 which held that a belated appeal from denial of post conviction relief under P-C.R. 2(1) may only lie where the challenge is to the conviction itself, i.e., a direct appeal. The decision, however, does not purport to preclude belated appeals in every conceivable instance except for direct criminal appeals. Accordingly, Greer v. State (1997) Ind., 685 N.E.2d 700, cited by the majority here, must be read in the context of Howard.
The appeal at issue with respect to the bail issue, is a direct appeal from a probation revocation and does not run afoul of Howard, supra, 653 N.E.2d 1389. See Riffe v. State (1997) Ind.App., 675 N.E.2d 710, trans. denied. However, as noted, the propriety of Impson’s appeal does not give rise to any relief which can be afforded for the erroneous bail ruling.