dissenting.
I respectfully dissent.
The majority acknowledges that in Robinson v. State, 789 N.E.2d 965 (Ind.Ct.App.2003), trans. granted, this court held that the determination of good time eredit is an administrative function and does not lie within the discretion of the trial courts. Although Robinson's holding has been vacated by our supreme court's grant of transfer, I maintain that its analysis is correct.
As we noted in Robinson, "it is evident that the deprivation or restoration of a person's credit time is a discretionary matter entrusted not to the courts but to the administrators of the DOC" (footnote omitted). 789 N.E.2d at 967 (quoting Campbell v. State, 714 N.E.2d 678, 683-84 (Ind.Ct.App.1999)). Indiana Code section 11-11-5-3 expressly gives the DOC the authority "to deprive a prisoner of earned credit time under [Indiana Code section] 85-50-6-5(a) as a disciplinary action for violating the rules of the DOC or a penal facility." Campbell, 714 N.E2d at 683. "Because pre-sentence jail time is a matter of statutory right, trial courts generally do not have discretion in awarding or denying such credit." Molden v. State, 750 N.E.2d 448, 449 (Ind.Ct.App.2001).
Further, a prisoner must be accorded a hearing to determine his guilt or innocence and must be given procedural due process protections before a deprivation of credit time may occur. Ind.Code § 85-50-6-5(b) (1998). After a review of the procedural safeguards enumerated in Indiana Code section 35-50-6-4(c), our court observed in Campbell that the legislature intended that the DOC conduct that hearing. 714 N.E.2d at 638. Campbell held that the statutory scheme provided that the legislature intended that the grant or denial of credit time be the province of the DOC and not the trial court. Id. at 683-84.
In reaching its decision, the majority places significant emphasis on the distinction between pre-sentence and post-sentence credit time. Slip. op. at 328. However, the legislature's intention regarding credit time determinations is the same in the context of pre-sentence and post-sentence incarceration. Under Indiana Administrative Code, title 210, rule 8-1-17, each sheriff is required to establish rules for inmate conduct and may, as a disciplinary action for violation of such rules, reassign prisoners to a lower credit time class or deprive them of earned credit time pursuant to the same 'statutory scheme and *326procedural safeguards. Further, Indiana code section 35-50-6-5.5 provides that "[a] person who has been reassigned to a lower credit time class or has been deprived of earned credit time may appeal the decision to the commissioner of the department of correction 'or the sheriff." Importantly, nothing in the statutes or administrative code section providing for the granting and denial of good time credit distinguishes between good time credit earned before sentencing and that earned after sentencing. See Ind.Code § 11-11-5; § 85-50-6-4 ("a person imprisoned for a crime or imprisoned awaiting trial or sentencing is initially assigned to Class I.") (emphasis added); § 35-50-6-5; § 35-50-6-5.5; Ind. Admin. Code tit. 210, r. 3-11-17.
Finally, as a matter of sound public policy, it makes sense for the DOC or sheriff to determine good time credit. As the majority notes, once a defendant has been committed to the DOC, the DOC is in the best position to handle the assignment and modification of credit classes. Slip op. at 323-324. Similarly, the DOC or local sheriff is in the best position to handle the determination of good time eredit for pretrial and pre-sentencing defendants. Instead of leaving this determination to the DOC or to the sheriff, either of whom already makes the rules for inmate conduct, enforces those rules, and provides hearings for the denial of credit time, the majority would have the trial court determine a defendant's good time credit "with assistance from the local sheriff." Slip op. at 323-824. I believe it would be more sensible to abandon any distinction between pre-sentencing and post-sentencing good time credit and leave the determination exclusively to the penal authority in charge of the defendant at the time in question, whether the sheriff or DOC.
The judgment of conviction statute does require a trial court to include in its judgment, among other things, the amount of credit, including credit time earned, for time. spent in confinement before sentencing. Ind.Code § 35-38-38-2(b) (1998). Nonetheless, I would agree with the panel of this court that recently held that the trial court's failure to record a defendant's credit time earned or good time credit in its abstract of judgment does not render the defendant's sentence facially erroneous. Hatchett v. State, 794 N.E.2d 544, 547 (Ind.Ct.App.2003).
Until our supreme court clarifies the issues presented in Robinson, I believe that in light of the case law, statutes, and sound public policy considerations, the authority to grant or deny good time credit belongs to the DOC or sheriff, not to the trial court. For these reasons, I would affirm the trial court's denial of Crow's motion to correct erroneous sentence.