Today’s post addresses a small (and admittedly mundane) thing that trips people up from time to time. What happens when an appealed probationary sentence comes back to the trial court that imposed it? The issue arises when an appeal is withdrawn, or when a probationary sentence is affirmed.
As most readers probably know, probation is stayed on appeal. When a probationary sentence imposed in district court is appealed for trial de novo, all portions of the district court judgment are stayed under G.S. 15A-1431(f1). That stay includes any incarceration and any probation, including special probation (a split sentence). As noted in the N.C. Defender Manual, Chapter 35.1.B, “An appeal from the district court judgment wipes the slate clean in the criminal case, and the trial in superior court is a new trial from beginning to end on both the law and the facts. See State v. Spencer, 276 N.C. 535 (1970) (holding that once a defendant appeals from district court to superior court, the plea, trial, and verdict entered in district court are completely disregarded).”
Appeals of superior court convictions (and Class H and I felonies pled in district court) are governed by a different statute, but the general rule for stays is similar—at least as far as probation is concerned. Notice of appeal of a superior court conviction stays probation, including special probation. G.S. 15A-1451(a)(4).
But what happens if and when the case comes back to the court that imposed it?
When a district court probation is appealed for trial de novo and the defendant withdraws the appeal, the case is remanded to district court “for execution of the judgment.” G.S. 15A-1431(g) (withdrawal prior to calendaring); -1431(h) (withdrawal after calendaring, by consent of the superior court). In non–implied consent cases, there is no new sentence entered upon remand; it is, rather, just an execution of the existing judgment. In implied consent cases, a special rule applies requiring a new sentencing hearing in district court. G.S. 20-38.7(c).
When a superior court sentence to probation is appealed and then returns to the trial division, the controlling statute is G.S. 15A-1452. If an appeal of a probationary sentence is withdrawn, G.S. 15A-1452(a1), or if the sentence is affirmed on appeal, G.S. 15A-1452(b1), then the clerk of superior court must notify the district attorney, who then must calendar a so-called review hearing. At the review hearing, governed by G.S. 15A-1452(d), the defendant is entitled to be present and represented by counsel. In general, the upshot of the hearing is that the court directs compliance with the judgment as imposed, with the period of probation commencing as of the date of the court’s order. (That start date can become significant down the road, if there are jurisdictional questions about precisely when the case expires.)
The review hearing statute includes an additional provision giving the reviewing court authority to modify “any date or period of time specified in the original judgment [that] has become impractical or impossible due to the pendency of the appeal.” That rule could come into play if, for example, the original sentence ordered a treatment program or split sentence to be completed on particular days or by a particular day, and those days have long since passed during the pendency of the appeal. It’s not technically a resentencing, but the court has the power to change the dates as needed “to give effect to the original judgment as closely as possible.”
The statute goes on to say that other modifications are permissible as long as the court complies with the modification procedures of G.S. 15A-1344—which would generally include notice, an opportunity to be heard, and some good cause for the modification. That good cause will not generally be a violation, because the person has not yet been on probation (unless perhaps they were under supervision for a very short time before they appealed, and very violated very quickly), but other changes in circumstances could meet the good cause requirement.
There is no statutory timeline for the review hearing described in G.S. 15A-1452, but it makes sense to do it promptly. The defendant’s probation period—stayed during the appeal—does not commence until the court enters its order directing compliance.
