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Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT: JOHN PINNOW Special Assistant to the State Public Defender Greenwood, Indiana

ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General of Indiana MONIKA PREKOPA TALBOT Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
JEFFERY WHITACRE, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 35A02-0708-CR-677

APPEAL FROM THE HUNTINGTON CIRCUIT COURT The Honorable Thomas M. Hakes, Judge Cause No. 35C01-0608-FB-40

December 31, 2007 MEMORANDUM DECISION - NOT FOR PUBLICATION BAILEY, Judge

Case Summary Appellant-Defendant Jeffery Whitacre ("Whitacre") appeals the trial court's calculation of credit time towards his sentence for Criminal Deviate Conduct, as a Class B felony.1 We reverse and remand. Issue On appeal, Whitacre raises the issue of whether the trial court erred in determining his credit time to be zero. Facts and Procedural History On August 17, 2006, the State charged Whitacre with criminal deviate conduct, as a Class B felony, attempted criminal deviate conduct, as a Class B felony, and sexual battery, as a Class D felony.2 Whitacre was arrested for these charges as well as for driving with a suspended license on September 1, 2006. Four days later, he was sentenced to twenty days incarceration for the driving offense under cause number 35D01-0608-CM-62 ("CM-62"). That same day, a bench warrant was issued for Whitacre's arrest for failure to appear for a hearing on fees and court costs under a separate cause number, 35D01-0510-CM-864 ("CM-864"). In that cause, Whitacre was found not to be indigent and that he failed to pay fines and court costs. Because Whitacre failed to pay despite his ability to do so, the trial court ordered Whitacre imprisoned to "sit out fees & court costs in the amount of $906.00 at the rate of $20 per day" or pay the remaining balance owed. Appendix at 157. This sentence was ordered consecutive to the
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