dissenting.
I respectfully dissent from my colleagues’ conclusion that Hawkins’s petition for sentence modification was untimely. The legislature has not spoken clearly on this issue, namely, whether the 365-day period within which the trial court has sole discretion to grant a modification restarts after a defendant is resentenced. The statute needs legislative clarification on this point. While the majority conceives one approach, I write to explain my view that under the statute as currently written, the 365-day clock did, in fact, restart when Hawkins was resentenced pursuant to our Appellate Rule 7(B) revision. I also dissent because the majority’s approach to the respective timing of sentence modifications by trial courts on the one hand, and appellate review of sentences on the other, raises substantial problems of unworkability. Statutes must be read in harmony and produce a workable solution.
The statutory issue turns on whether the phrase “[w]ithin three hundred sixty-five (365) days after ... a convicted person begins serving the person’s sentence,” Ind. Code § 35-38-l-17(a)(l), refers only to the sentence originally imposed by the trial court or whether it also refers to the sentence that the person now must serve and complete as a result of resentencing. The statutory text lacks guidance for resolving this question, and the majority properly acknowledges that our appellate decisions have not squarely addressed it before. While the majority states Hawkins “has been serving his sentence since it was originally imposed,” op. at 600, the fact remains that Hawkins’s original sentence was vacated by our earlier opinion in this case. Hawkins v. State, No. 79A05-0912-CR-701, 2010 WL 841338, at *3 (Ind.Ct. App., Mar. 11, 2010). In Gardiner v. State, our supreme court concluded that when a defendant’s felony conviction was later modified and reduced to a misdemeanor, entry of judgment as a misdemeanor “constitute^] a new and different judgment effectively vacating the prior judgment.” 928 N.E.2d 194, 197 (Ind.2010). For one to say Hawkins’s original sentence was not vacated, but was merely revised and reduced, would be a distinction without a difference. The sentence Hawkins now must serve and complete is not the sentence the trial court originally imposed, rather, it is the new and different sentence the trial court entered in April 2010 in accordance with our earlier appellate decision. Hawkins presumably began serving this sentence in April 2010.3
I conclude that the “convicted ... person’s sentence,” Ind.Code § 35-38-1-17(a)(1), refers to the sentence that the person now must serve and complete, and therefore Hawkins’s resentencing restarted the 365-day clock. Though, to emphasize, the legislature is free to provide a contrary rule, this interpretation is persuasive because the statute as written appears to speak in the present tense. Cf. Gard-iner, 928 N.E.2d at 197 (concluding that modification of conviction from felony to misdemeanor means a person no longer has a prior felony conviction because “the [non-suspension] statute speaks in the *602present tense”). Notably, the modification statute does not refer to the trial court’s original sentencing of the defendant as the trigger date. While in Redmond v. State, 900 N.E.2d 40 (Ind.Ct.App.2009), tram, denied, we stated “[t]he triggering date is the date the trial court imposes the sentence,” that holding relied upon the statute’s use of the term “imposed,” which, as the majority notes, has since been removed from the statute. Id. at 42-43; see op. at 600-01. Still, Redmond is consistent with the conclusion that because a resen-tencing is, in effect, a new imposition of sentence, it is likewise a new trigger date that restarts the 365-day clock. The argument rejected in Redmond as contrary to “the State’s legitimate interest in the finality of judgments and an ordered procedure for the modification of sentences” would have allowed a sentence to be modified (without the consent of the prosecutor) a decade or more after it was originally imposed, without the intervening event of a resentencing. 900 N.E.2d at 43. Here by contrast, holding that a resentencing restarts the 365-day clock provides at least as orderly a procedure for modifying sentences as does the majority’s contrary holding.
Further, the majority’s approach raises substantial workability problems. On the one hand, my colleagues state that sentence review on direct appeal and sentence modification by the trial court are separate avenues of relief, and a defendant need not elect one over the other. Yet, on the other hand, the majority explicitly holds that successful appeal of a sentence does not restart the 365-day period to file for sentence modification under Indiana Code section 35-38-l-17(a). Apparently to reconcile these propositions, the majority suggests that to avoid running of the 365-day period, the defendant might stay his direct appeal to allow the trial court to first consider and rule on a petition for sentence modification. The majority states that in such a situation, “[t]he stay procedure provided by Appellate Rule 37 ... promotes judicial economy.” Op. at 600. I cannot agree that a stay procedure is appropriate, as illustrated by the following scenarios that arise under the majority’s analysis.
1. A defendant stays his appeal and, after the trial court holds a hearing, receives new evidence, and denies his petition for sentence modification, proceeds with his appeal for this court to revise his sentence pursuant to Appellate Rule 7(B). This sequence is backwards because 7(B) appropriateness review looks at the facts existing at the time of initial sentencing, whereas only sentence modification allows for reviewing new factors developed on a record created after the initial sentencing. In addition, sentence modification is best sought several months or approaching a year after initial sentencing because some time is necessary to develop evidence of new factors. As a matter of logic and practicality, appellate review of sentence appropriateness must precede, not follow, consideration of sentence modification. Yet the majority’s suggested stay procedure requires the opposite sequence.
2. A defendant stays his appeal, the trial court grants his requested sentence modification, and the defendant then proceeds asking this court to further reduce his sentence pursuant to Rule 7(B). Which sentence are we to review? The original sentence has been modified, so it is moot. The modified sentence cannot be reviewed with our existing legal framework because an order for modifying a sentence is reviewable only for abuse of discretion, not inappropriateness. See Myers v. State, 718 N.E.2d 783, 789 (Ind.Ct.App.1999) (stating a trial court’s decision regarding sentence modification will *603be reversed “only upon a showing of abuse of discretion”), tram, denied.
3. If a defendant does not obtain a stay of his direct appeal, the majority’s holding makes the availability of modification following a successful appeal (without requiring consent of the prosecutor) depend on whether the appeal is decided before the 365-day period runs out. See op. at 600 (“By not requesting a stay, Hawkins took the risk that the 365-day window would close before his appeal was complete.”). This generates the potential for arbitrary results, as a defendant has no control over how long the appellate process may take in a given case. By contrast, holding that a resentencing restarts the 365-day clock would yield the consistent result that a subsequent petition for further modification is available to the defendant. Such a result is also fairer because it means the time spent appealing a sentence that is inappropriate under Rule 7(B), an abuse of discretion, or otherwise in error, does not count against the defendant’s time to file for modification.4
The above scenarios illustrate but do not necessarily exhaust the unworkable situations that may and will arise under the majority’s holding. I respectfully dissent and would urge the legislature to revisit the sentence modification statute and make any amendments necessary to provide a clear, workable rule.
. To be sure, the time Hawkins already served is credited toward his new sentence. Cf. Ind. Post-Conviction Rule l(10)(b) (“If a sentence has been set aside pursuant to this rule and the successful petitioner is to be resentenced ... the court shall give credit for time served.”). This is analogous to the majority’s dictum that incarceration prior to initial sentencing, while credited toward the sentence, does not start the 365-day period. See op. at 599 n. 1.
. Of course, if an appeal is unsuccessful and the trial court’s sentence affirmed, the time spent appealing does not toll the 365-day period under the statute as presently written. While this aspect of the statute poses another hurdle for defendants wishing to pursue both an appeal and- a request for modification of a sentence, its propriety is a legislative question beyond our purview as an appellate court.