In 2018, I wrote this post, https://nccriminallaw.sog.unc.edu/2018/11/28/total-split-sentence-exposure/, about split sentences, examining the total limit on split sentence incarceration that a judge can order at sentencing and as a later modification of probation. There’s a “one-fourth rule” at sentencing, allowing the court to impose confinement of up to one-fourth the maximum sentence as a condition of probation. G.S. 15A-1351(a). And there’s another “one-fourth rule” for splits ordered later in the life of a case, allowing the court to order confinement of up to one-fourth the maximum sentence as a modification of probation. G.S. 15A-1344(e). The question is whether those one-fourth authorizations draw from the same bank of time. In other words, is the total split sentence exposure one-fourth the maximum, or is it actually half the maximum (one-fourth at sentencing, and an additional one-fourth as a modification of probation).
When I wrote in 2018, we didn’t have any published cases answering the question. My thought based on unpublished State v. Younts, 794 S.E.2d 923 (2016) (unpublished), was that the one-fourth limit was cumulative. In that case, a defendant with a 30-month maximum sentence was ordered to complete a 4-month split at sentencing and then later ordered to do an additional 6-month split as a modification of probation. On appeal, the defendant argued that 10 months of total split time exceeded one-fourth of 30 (7.5), and was therefore improper. The State conceded the error and the court of appeals remanded the case for correction. Clear enough, but unpublished.
Since 2018, we’ve had a published case that answers the question. Sort of. In State v. Jackson, 291 N.C. App. 116 (2023), a defendant with a 60-day suspended sentence for a simple assault was ordered at sentencing to do a 15-day split, which he did. When the defendant was later found to be in violation of probation for violating his curfew, the court ordered an additional split sentence of 45 days. The Court of Appeals concluded that the total confinement of 60 days exceeded the one-fourth allocation in G.S. 15A-1351(a) and was thus erroneous.
The split ordered in Jackson isn’t a perfect test of the rule, because it used up the defendant’s entire remaining suspended sentence. It would have violated a four-fourths rule. But the appellate court’s reference back to G.S. 15A-1351(a) suggests that the modification split drew from the same number of days as the split ordered at sentencing—which, at 15 days, had already maxed out one-fourth of 60, leaving no allocation of permissible split time.
The Jackson court noted another problem with the defendant’s additional split time. The defendant was convicted on December 16, 2019, and ordered to serve the additional split term on March 14, 2022—more than two years after conviction. The court viewed that as violating the rule in G.S. 15A-1351(a) that “no confinement other than an activated suspended sentence may be required beyond two years of conviction.” That rule doesn’t come up very often, but it can be an issue when a defendant with a long probation period is ordered to serve occasional weekends, or perhaps some time in jail every year (after the second year) on the anniversary of the crime. The split modification statute, G.S. 15A-1344(e), includes similar language that says “No confinement other than an activated suspended sentence may be required . . . beyond two years of the time the special probation is imposed.” I might have thought that referred to the special probation “imposed” as a later modification of probation, resetting the two-year clock as of the time of the modification. But the Court of Appeals referred back to the original date of sentencing—a rule that leaves probationers split-proof for any time spent on probation beyond two years, regardless of how many split days they have served at that point. That may be something to keep in mind when considering the proper response to a violation later in the life of a case.
