concurring in part and dissenting in part.
I respectfully dissent from the portion of the majority's opinion holding that the trial court did not err in sentencing Smith to one year of probation in addition to an executed sentence of 110 days. A trial court does not have the authority to sentence a defendant to a term in excess of that prescribed by statute. Niece v. State (1983), Ind.App., 456 N.E.2d 1081, 1084. The maximum penalty prescribed for a Class A misdemeanor is one year. Ind.Code 85-50-8-2. Any sentence above that is illegal, Niece, 456 N.E.2d at 1084. Thus, because Smith received 110 days executed, he could be placed on probation for no more than 265 days.
1.C. 85-50-2-2(c) provides:
(c) Whenever the court suspends a sentence for a felony, it shall place the person on probation under IC 85-88-2 for a fixed period to end not later than the date that the maximum sentence that may be imposed for the felony will expire.
1.C. 85-50-8-1 provides:
(a) The court may suspend any part of a sentence for a misdemeanor.
(b) Whenever the court suspends a sentence for a misdemeanor, it may place the person on probation under IC 835-7 for a fixed period of not more than one (1) year.
While the suspension/probation statute for felonies (.C. 85-50-2-2) specifically states that the term of probation may not exceed the date of the maximum potential sentence, the failure of the equivalent misdemeanor statute (I.C. 85-50-8-1) to specifically state the same does not permit the conclusion that an extension beyond the maximum statutory penalty is permissible. The only unobjectionable interpretation of this statute is that the "of not more than one (1) year" merely sets the maximum probationary period but does not in any way extend the statutory penalties for misdemeanors.
For example, in Slayton v. State (1989), Ind.App., 534 N.E.2d 1130, defendant was convicted of three class A misdemeanors and sentenced to one year for each conviection. The trial court suspended the sentences and placed defendant on probation for three years. During the probationary period, the trial court found that defendant had violated his probation and sentenced him to one additional year of probation. During that additional year, defendant committed another violation and the trial court revoked his probation. On appeal, defendant argued that "a trial court does not have the authority to 'extend' a defendant's term of probation beyond the maximum term of the defendant's sentence or sentences." Id. at 1131. This court *272agreed, holding that "the probation period cannot exceed the sentence term" and that defendant's probation "was terminated by operation of law at the end of the three years, the maximum period for which he could be placed on probation." Id. at 1131.
While Hoage v. State (1985), Ind.App., 479 N.E.2d 1362, contains language which could be interpreted to authorize a one year probationary period in addition to an executed sentence, the issue was not directly addressed; thus, the language was mere dicta. In that case, defendant was sentenced to one year, with all but 80 days suspended and placed on 5 years probation. He appealed the 5 year probationary period and this court reversed, holding that probation in excess of the one year statutory limit was impermissible. Id. at 1866. While the court in Hoage did state that a "one year suspended sentence with 30 days executed and a one year probationary period is not manifestly unreasonable," the court was addressing only the reasonableness of the sentence, not its propriety.
Indiana Code 35-50-8-2 sets the maximum penalty for a class A misdemeanor at one year. The trial court has the option, in sentencing a class A misdemeanant, to suspend the sentence in whole or in part and to place the defendant on probation, so long as the combination of the executed sentence and the probationary period do not exceed the maximum statutory sentence for that offense. Because Smith's sentence exceeds the statutory maximum, I would remand to the trial court with instructions to modify the term of probation to comply with the law.
In all other respects, I concur with the majority opinion.