concurring.
I agree with the majority's conclusion that the trial court erred in denying Stith credit for the time he served while on home detention. I write separately, however, to emphasize that the specific legislative clarification now made a part of Ind. Code § 35-38-2.5-5, which permits an individual confined to home detention as a condition of probation to earn credit time for time served, came in direct response to some of the problems that our trial judges encounter when a defendant is ordered to serve a sentence in a place other than a community corrections facility,. As the majority points out, it is presumed that the general assembly is responding to the appellate decisions that have construed particular legislation when it replaces a provision of an act that has been construed by the courts. Op. at - (citing Egan v. Bass, 644 N.E.2d 1272, 1274 (Ind.Ct.App.1994)).
In Palmer v. State, 744 N.E.2d 525 (Ind.Ct.App.2001), we held that a defendant should not earn credit time when he is placed on home detention because the degree of the denial of liberty was not sufficient to warrant such credit. Id. at 530. The recent amendment to I.C. § 385-38-2.5-5 now makes it clear that a defendant is entitled to receive that credit and seemingly puts the controversy between the Palmer and Dishroon holdings to rest. In essence, the legislature accepted our invitation in Palmer to revisit the onee existing "patchwork quilt of contradiction and confusion" in this area. Id.
In addition to the legislative change, it is also noteworthy that our supreme court has granted transfer in Martin v. State, 748 N.E.2d 428 (Ind.Ct.App.2001), where this court followed the reasoning in Paimer and affirmed the trial court's denial of the probationer's request for credit for time served on home detention. Inasmuch as our supreme court has taken such action and our legislature now expressly permits a defendant to receive such credit time, it is apparent to me that Stith should be entitled to the same.