concurring in part and dissenting in part.
I concur with respect to Part I of the majority opinion. However, I respectfully dissent as to Parts II and III.
II.
Double Jeopardy
Hardley claims that under the “actual evidence” test of Richardson v. State, 717 N.E.2d 32 (Ind.1999) the two convictions violate double jeopardy considerations. I agree.
The State maintains that the evidentiary facts and the charging information “demonstrate two separate incidents.” (Appel-lee’s Br. 11). The State supports this position by concluding that the battery conviction was based “exclusively on the slapping of Ms. Richmond, while the Criminal Confinement was based exclusively on what happened thereafter, when Ms. Richmond attempted to call 911” (Id.).
These conclusions do not appear to be so obviously justified. Although the charge for battery does not refer to Hardley’s kicking of Richmond it is not restricted to the act of slapping her. It alleges that he struck her “with hands and/or fists, which resulted in bodily injury, that is: pain, redness, swelling and/or cuts ...” In ordinary parlance a slap is administered by a hand not a fist. Furthermore, although the slap knocked Richmond to the mattress it was depicted as a single blow and would not result in any more than the swollen lips and a degree of pain which Richmond said was caused by the slap. Richmond, however sustained other injuries from the beating which took place during the confinement.
Under these circumstances, I am unable to say with a degree of assurance that the trial court separately compartmentalized the evidence of the slap from the evidence of the beating administered during the confinement. It appears to me that the court, in reaching its determination upon the two charges, considered the totality of the events and actions of the defendant as a continuing incident.
Here, as in Bruce v. State, 749 N.E.2d 587 at 592 (Ind.Ct.App.2001), Richmond sustained injuries during the beating-confinement unrelated to the slap. I am unable to say that there is no reasonable possibility that the same evidentiary facts were not used to support both convictions. See Bradley v. State, 867 N.E.2d 1282 (Ind.2007); Ransom v. State, 850 N.E.2d 491 at 504 (Ind.Ct.App.2006).7
*1148Accordingly, I would reverse the conviction for Battery as a Class A felony and vacate the concurrent sentence upon that conviction.8 I would affirm, as does the majority, the conviction and 730 day sentence upon the Confinement charge.
III.
Consecutive Sentences
The State notes that less than one month after he had been released upon his own recognizance upon an unrelated Class D felony Theft charge, Hardley committed the confinement here involved.
The State is therefore correct that I.C. 35-50-l-2(d) specifies that the Confinement sentence must be ordered consecutive to the 910 day sentence in the theft case under Cause Number 49F18-0608-FD-159522. The majority opinion agrees with the State and orders the sentences in the two cause numbers to be served consecutively.
In this case, at the sentencing hearing during which the sentences in both cause numbers were considered and imposed, the State requested the sentences “under each cause number to be served consecutively.” (Tr. 12). However, the State did not premise its request upon the mandatory consecutive sentence provision of I.C. 35-50-l-2(d). In any event the trial court explicitly made it clear that the sentences were concurrent and the State did not respond or react by pointing out the statutory requirement for consecutive sentences; nor did the State thereafter, within the thirty day allowable period, file a Motion to Correct Erroneous Sentence. It was not until the State filed its response brief in this appeal that the issue was raised.
Hoggatt v.State, 805 N.E.2d 1281 (Ind.Ct.App.2004), reh. 810 N.E.2d 737 dealt with an analogous situation. There, defendant was out on bond from an unrelated charge when he committed another offense. The judgment of conviction upon each of the cause numbers failed to reflect that the sentences were to be served consecutively. Accordingly the Department of Correction ran the sentences concurrently and released Hoggatt at the end of the indicated time. One year later, the State filed a Motion to Correct Sentencing Error which the court granted. Hoggatt was ordered to be taken into custody to serve the additional 514 days which would have been served under consecutive sentences.
This court held that a motion to correct an erroneous sentence is only appropriate where the sentence is “erroneous on its face”. Robinson v. State, 805 N.E.2d 783 (Ind.2004). The Hoggatt court further observed that whether the defendant was free on bond was not apparent from the face of the sentencing judgment and that therefore the sentence was not facially erroneous. Where, as here, the error must be discovered by resort to matters not on the face of the sentencing order, and it is the State which is seeking relief, “the State must take action within thirty days *1149or forfeit is right to challenge an erroneous sentence.” 805 N.E.2d at 1284.
The State seeks to avoid this result by-citing to Barnett v. State, 834 N.E.2d 169 (Ind.Ct.App.2005). In that case a different panel of this court cited Groves v. State, 823 N.E.2d 1229 (Ind.Ct.App.2005) which in turn relies upon Morgan v. State, 417 N.E.2d 1154 (Ind.Ct.App.1981) for the proposition that an improper sentence is fundamental error which cannot be ignored on review. However, the proposition, as stated, is not a complete recitation of the applicable law.
Morgan says that on appellate review the issue is to be addressed. It states by way of qualification, however, that even if the issue was not raised at the trial court level the sentencing error “may be corrected” (emphasis supplied) 417 N.E.2d at 1156, when the error appears facially.
In light of my reading of Morgan, as the authority for the Barnett and Groves decisions I conclude that the opinion in Hog-gatt remains the applicable law for a situation such as now before us.9
In so stating, I am not unaware that notwithstanding that I.C. 35-38-4-2 does not permit an appeal by the State for sentencing error, cases have held that sentencing error may be raised for the first time on appeal. In Stephens v. State, 818 N.E.2d 936 (Ind.2004) our Supreme Court acknowledged that line of cases and without endorsing those holdings said that “precedent dictates” that the sentencing issue was properly before the Court. 818 N.E.2d at 940. The author of this opinion did likewise in Abron v. State, 591 N.E.2d 634 (Ind.Ct.App.1992). In light of Hoggatt and in view of considerations of fundamental fairness in such matters, I have altered my position to the extent that I now feel that the State may not unreasonably delay presenting such question. It should not be permitted to “wait any length of time it chooses to appeal..”. See State v. Snider, 892 N.E.2d 657, 2008 WL 3463254, (Ind.Ct.App.), a published order by a unanimous panel of this court. The rationale of Hoggatt v. State, supra constitutes a just and proper resolution to the issue before us.
For the reasons stated I would vacate the battery conviction but would affirm the conviction and sentence upon the confinement conviction and would also affirm the concurrent sentences imposed in the disparate cause numbers.
. Although I find no published Indiana precedent directly on point, I discern no basis upon which to apply a different "same evidence” test to a bench trial as opposed to a jury trial. In point of fact, the opinion in Richardson v. State, 717 N.E.2d 32 (Ind.1999) which established the same evidence test, does not use language restricting its application to jury trials. It uses the phrases "trier of fact” and "fact-finder.” 717 N.E.2d at 53. Many, if not most, subsequent cases on the matter use similar phrasing.
Furthermore, it is appropriate to take cognizance of Justice Boehm's separate opinion in Guyton v. State, 771 N.E.2d 1141 at 1145 et. seq. (Ind.2002). In that opinion he notes that the Supreme Court has effectively abandoned the Richardson test in favor of Justice Sullivan's Richardson enunciation of the five situations in which two convictions may not coexist. One of these is where one crime "consists of the very same act as an element of [the other].” (Emphasis supplied). Richardson v. State, supra (Sullivan J. concurring) 717 N.E.2d at 55. This enunciated situation *1148was essentially the rationale for this court's opinion in Alexander v. State, 768 N.E.2d 971 (Ind.Ct.App.2002), transfer denied.
. With respect to whether the trial court’s conviction here for battery as well as for confinement runs afoul of double jeopardy principles, I would acknowledge that trial judges are presumed to correctly apply applicable law. However, unless the court states its differentiating evidentiary analysis there is no basis upon which a conclusion could be reached with assurance that the court did not consider some of the same evidence as it related to the two charges. It is for this reason that I am unable to concur in affir-mance of both conviction.
. In his reply brief, Hardley opines that even if we were to hold that the sentences in the two cause numbers should have been served consecutively, he has been incarcerated for time equivalent to consecutive sentences of 545 days on # 9522 (the theft conviction) and 730 days on #3415 (the confinement conviction) less credit time. Because I would validate the sentences as imposed, i.e. concurrent sentences, I do not express an opinion as to this viewpoint.