David, J.
In Indiana, persons convicted of certain crimes may earn credit time during incarceration for such things as good behavior and participation in educational and rehabilitative programming. State statute outlines the mechanism for awarding this credit during a person’s imprisonment or confinement.
But what happens when the State erroneously releases a prisoner? Should that person receive credit for time spent at liberty, or must they resume their sentence where they left off, thereby extending their release date? May that person be recommitted at all?
We address those questions today and find that, while erroneous release may not short-circuit the entirety of a person’s sentence, that person may, after the trial court holds a hearing, earn credit for time spent erroneously at liberty as if they were still incarcerated.
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At its heart, Temme’s argument is one of fairness—that re-incarceration would serve no rehabilitative purpose in his case because he bore no fault in his early release and because he has successfully reintegrated into society. He argues as a matter of public policy that if he were ordered to serve the entirety of his sentence despite erroneous release, it would degrade public confidence in the criminal justice system and ratify the negligent errors of government officials.
Examining the legal landscape of Temme’s argument, early decisions from several courts drew a firm line: “[W]here the court’s judgment is that the defendant be imprisoned for a certain term and for any reason, other than death or remission of sentence, time elapses without the imprisonment being endured, the sentence remains valid and subsisting in its entirety.” United States v. Vann, 207 F.Supp. 108, 113 (E.D.N.Y. 1962); see also U.S. ex rel. Mayer v. Loisel, 25 F.2d 300, 301 (5th Cir. 1928) (“Mere lapse of time without the appellant undergoing the imprisonment to which she was sentenced did not constitute service of the sentence, which remained subject to be enforced”), Leonard v. Rodda, 5 App.D.C. 256, 274- 75 (D.C. Cir. 1895) (finding a sixty-day sentence must be served despite inmate’s erroneous release by the warden). Stated differently, this “harsh, unyielding” rule required that “a convicted person erroneously at liberty must, when the error is discovered, serve the full sentence imposed.” United States v. Martinez, 837 F.2d 861, 864 (9th Cir. 1988); see also Danielle E. Wall, A Game of Cat and Mouse–Or Government and Prisoner: Granting Relief to an Erroneously Released Prisoner in Vega v. United States, 53 VILL. L.R. 385, 389 (2008).
Recent caselaw, however, has parted ways with the severity of this strict rule. The Seventh Circuit, for example, held: “[U]nless interrupted by fault of the prisoner (an escape, for example) a prison sentence runs continuously from the date on which the defendant surrenders to begin serving it. The government is not permitted to delay the expiration of the sentence either by postponing the commencement of the sentence or by releasing the prisoner for a time and then reimprisoning him. So, for example, if the sentence is five years and the defendant begins to serve it on July 1, 1990, the government cannot, by releasing him between January 1, 1992 and December 31, 1992, postpone the expiration of his sentence from June 30, 1995, to June 30, 1996…. The sentence expires on schedule even though the defendant will have served four years rather than five…. Punishment on the installment plan is forbidden.” Dunne v. Keohane, 14 F.3d 335, 336 (7th Cir. 1994) (citation omitted).
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If Dunne declared the finish line of a defendant’s sentence is set in stone, what happens when, through no fault of the prisoner, the State erroneously declares the race is over before all the laps are completed? One option advanced by Temme is to treat his time at liberty as if he were still incarcerated. This strategy would give Temme day-for-day credit in the same way he would receive credit during his incarceration.
This concept finds support in the vast majority of federal circuit courts where it is referred to as either the “rule” or the “doctrine” of credit for time at liberty.
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Each of these federal decisions offer pros and cons. But before we answer whether Indiana should adopt any of these tests, we must ask whether we could. The State claims that all credit time scenarios must derive from statute and that we, the judiciary, lack authority to carve out additional credit-granting scenarios.
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The State argues against adopting a Pearlman-style rule, opining that defining the grant or denial of credit time is within the sole province of the General Assembly. See 42 F.2d at 789. In other words, the State believes that absent a specific legislative grant of credit time for those erroneously at liberty, a court as a coordinate branch of government cannot craft a stopgap measure.
To that end, the State directs us to Indiana Code chapter 35-50-6. That chapter defines and extends credit time to incarcerated individuals. There, “Credit time” is defined as “the sum of a person’s accrued time, good time credit, and educational credit.” Ind. Code § 35-50-6-0.5(2). Accrued time, good time credit, and educational credit are all terms that represent certain time earned during a person’s term of imprisonment or confinement. See Ind. Code § 35-50-6-0.5(1), (3), (4). What this chapter says, according to the State, is that credit time scenarios only apply if a person is imprisoned or confined and, since Temme was “at liberty,” he does not qualify for credit time.
We agree that Temme’s time at liberty does not qualify for credit time under the statute. But we do not think the statute occupies as much space as the State would have us find.
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Read as a whole, we find the statute only covers what it says it covers. That is, Indiana Code chapter 35-50-6 only concerns credit time while an inmate is imprisoned or confined. We do not think the General Assembly has, by implication, excluded all other forms of credit time.
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We do think, however, this statute serves as a useful guide for determining what credit an erroneously released inmate is due for his time spent at liberty.
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Temme urges us to craft a two-tiered rule that operates depending on the severity of the government’s negligence. The State, as an alternative to its statutory argument, urges adoption of the Fourth Circuit’s totality of the circumstances test. We think the test should be much easier for trial courts to apply.
As long as the defendant bears no active responsibility in his early release, he or she is entitled to credit while erroneously at liberty as if still incarcerated.
This straightforward rule, however, does not relieve the defendant of his or her sentence. The defendant’s projected release date serves as a firm backstop. When it discovers an error, the State must petition a trial court to recommit the defendant to resume his or her sentence if, after calculating credit time, any sentence remains to be served.
Today’s finding is grounded in the idea that the State may not play cat and mouse with a defendant so as to push back a prisoner’s release date, particularly if the prisoner bears no responsibility for the State’s error. See Dunne, 14 F.3d at 336. It also considers the prisoner’s interest in serving a predictable sentence, places a limit on arbitrary use of government power, and fulfills society’s expectation that a prisoner is held accountable for his or her actions.
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In the instant case, the “accrued time” clock has continued to tick from Temme’s erroneous release date through the present appeal given his recommitment to the DOC was stayed. Temme’s good behavior and successful reintegration into society is certainly commendable and would likely qualify as “good time credit” under the statute were he still incarcerated. Additionally, Temme may qualify for educational credit if he had previously been enrolled in a program but could not participate due to his erroneous release.
It is within the trial court’s discretion to make this calculation after hearing evidence from the State and defendant. After evidence is presented, the trial court should award credit time accordingly.
We hold that Temme is entitled to credit time as if he were still incarcerated during the period spent erroneously at liberty. We therefore reverse the trial court and remand this matter so that the trial court can calculate, consistent with this opinion, any credit time owed to Temme. If time remains to be served after credit time is awarded, Temme must be recommitted to the appropriate authority.
Rush, C.J., and Massa, Slaughter, and Goff, JJ., concur.