Probation that includes incarceration is “special probation.” But it’s still probation.
If a defendant falls in a cell on the sentencing grid (felony or misdemeanor) that allows for intermediate punishment, he or she may be sentenced to special probation—better known as a split sentence. Recently, I have seen or heard about situations in which the court conceives of the active portion of the split as something separate from the probation itself. That is, the court will order the defendant to complete some term of confinement (up to one-fourth the maximum imposed sentence in a Structured Sentencing case, or up to one-fourth of the maximum penalty allowed by law for a DWI), and then order a period of probation to begin at the expiration of that confinement.
In my opinion an order like that misunderstands the nature of a split sentence. The confinement is part of the probation, not a precursor to it. Several statutes make that clear.
First, the confinement is a condition of probation. G.S. 15A-1343(b1)(3) (“Submit to imprisonment required for special probation under G.S. 15A-1351(a) or G.S. 15A-1344(e).”). Imposing that condition also automatically triggers the regular condition of probation that a person “obey the rules and regulations of the Division of Adult Correction of the Department of Public Safety governing the conduct of inmates while imprisoned and report to a probation officer in the State of North Carolina within 72 hours of his discharge from the active term of imprisonment.” G.S. 15A-1343(b). (That condition, by the way, applies to split sentence inmates housed in a local jail just as applies to those held in prison. State v. Payne, 156 N.C. App. 687 (2003).) If the confinement and its parallel requirement to behave are conditions of probation, then clearly the defendant must be on probation for those conditions to kick in.
Second, the split sentence statute, G.S. 15A-1351(a), describes the split sentence confinement as something that happens “within the period of probation” at whatever time or intervals, consecutive or nonconsecutive, the court determines. The statute also makes clear that the active portion of the split counts against the total time the total length of the probation period: “The original period of probation, including the period of imprisonment required for special probation, shall be as specified in G.S. 15A-1343.2(d), but may not exceed a maximum of five years, except as provided by G.S. 15A-1342(a).” The court may not keep the probation clock on hold during the imprisonment to preserve the more of the 5-year limit for traditional probation supervision.
Third, G.S. 15A-1353(a) says that when a defendant is sentenced to special probation, “the period during which that defendant is awaiting imprisonment shall be considered part of the probationary sentence and such defendant shall be subject to all incidents and conditions of probation.” I suppose that could be read to say that only the period awaiting imprisonment, and not the imprisonment itself, is part of the probationary sentence. But I do not read it that way. I think that provision is meant to underscore the general rule that a period of probation begins on the day it is imposed, G.S. 15A-1346(a), even when it includes a split. I understand the authority in G.S. 15A-1346(b), to order a term of probation consecutive to an “undischarged term of imprisonment,” to apply only to defendants convicted of multiple crimes who are serving a fully active term for at least one of them, with a period of probation to follow—a so-called “contingent sentence.”
As an administrative matter, Community Corrections starts the clock (and the tab for probation supervision fees) on probation immediately and keeps it running during a split. They delay the onset of probation only in true contingent cases.
If a judge wished to leave as much time as possible after a split for traditional supervision, I think the way to do it would be to order a longer period of probation. The total period, however, may not exceed 60 months—including whatever time the defendant spends behind bars.