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FOR PUBLICATION

FILED
Dec 30 2010, 9:16 am
of the supreme court, court of appeals and tax court

CLERK

APPELLANT PRO SE: ROSCOE C. FRY II Bunker Hill, Indiana

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana J.T. WHITEHEAD Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
ROSCOE C. FRY II, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 30A01-1005-CR-244

APPEAL FROM THE HANCOCK SUPERIOR COURT The Honorable Dan E. Marshall, Judge Cause No. 30D02-0207-CM-1047

December 30, 2010

OPINION - FOR PUBLICATION

BROWN, Judge

Roscoe C. Fry II, pro se, appeals the trial courts denial of his motion to correct erroneous sentence. Fry raises two issues, which we revise and restate as whether the court erred in denying Frys motion. The State raises the issue of whether Frys appeal is moot. We reverse and remand. The relevant facts follow. On July 16, 2002, the State charged Fry with battery. On August 5, 2004, Fry pled guilty to battery as a class B misdemeanor, and the court imposed a sentence of 180 days, thirty days of which to be executed in the Hancock County Jail, with credit for time served, 150 days suspended, and 365 days probation.1 The court ordered that the sentence be served consecutive to a sentence Fry received in Henry County. On April 8, 2005, the State filed a probation violation report. On April 11, 2005, the court found probable cause to believe Fry violated his probation and issued a warrant for Frys arrest. On November 16, 2005, the State filed another probation violation report. On November 17, 2005, the court found probable cause to believe Fry violated his probation and issued an arrest warrant, which was reissued on November 21, 2005. The record does not reveal further action on the warrant. On February 8, 2010, Fry filed a motion to correct erroneous sentence and argued that his sentence violated the statutory maximum sentence for a class B misdemeanor. The court denied Frys motion that same day and a chronological case entry states in part:

A CCS entry dated August 5, 2004, states: "Defendant is sentenced to 180 days . . . , 150 days suspended, with credit for time served. 365 days formal probation." Appellants Appendix at 30.
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2

"The court notes that in denying the defendants motion to correct erroneous sentence that it is the law of the State of Indiana that the defendant can be placed on probation for 1 year for any misdemeanor offense regardless of the statory [sic] maximum penality [sic] for that offense." Appellants Appendix at 31. We initially address the issue raised by the State of whether Frys appeal is moot. "When we cannot provide relief upon an issue, the issue is deemed moot, and we will not reverse the trial courts determination where absolutely no change in the status quo will result." Jones v. State, 847 N.E.2d 190, 200 (Ind. Ct. App. 2006) (internal quotation marks and citation omitted), rehg denied, trans. denied. Once the "sentence has been served, the issue of the validity of the sentence is rendered moot." Lee v. State, 816 N.E.2d 35, 40 n.2 (Ind. 2004) (citing Irwin v. State, 744 N.E.2d 565, 568 (Ind. Ct. App. 2001)). The State argues that "[n]othing in either the record or Frys brief indicates that he is still serving either his one hundred fifty days suspended, or his one years probation, or that he was in [jail] February, 2010, when he moved to correct that sentence that the court ordered in November, 2004." Appellees Brief at 3. Fry argues that "there is no reason to believe that [he] has completed the erroneous one (1) year probation (as the State claims in its [sic] argument) due to [Frys] continuous incarceration since 2005" and that he "would not waste this courts valuable time and resources if the sentence had been fully served." Appellants Reply Brief at 3-4.

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The record shows that Fry was sentenced on August 5, 2004 to a term of 180 days, thirty days executed and 150 days suspended, and placed on probation for 365 days. The record also shows that Fry testified that he was convicted in Henry County of receiving stolen property, which appears to be the conviction referenced by the court when it ordered that Frys sentence run consecutive to the sentence in Henry County. 2 We note that the offense of receiving stolen property can be a class C felony under certain circumstances.3 See Ind. Code

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