A conditional discharge allows a defendant who pleads guilty or is found guilty to be placed on probation without entry of judgment. If the defendant succeeds on probation, the court dismisses the conviction. If the defendant fails, the court enters judgment and sentences the defendant. Not long ago, G.S. 90-96 was pretty much the only conditional discharge game in town. Nowadays, there are lots of different conditional discharges. Today’s post collects them all in one place.
Conditional discharge under G.S. 15A-1341(a4)
Certain defendants who plead guilty to or are found guilty of any Class H or Class I felony or a misdemeanor other than impaired driving may, on joint motion of the defendant and prosecutor, be placed on conditional discharge probation. Before placing a defendant on conditional discharge probation under G.S. 15A-1341(a4), the court must find that:
- Each known victim has been notified and given an opportunity to be heard;
- The defendant has not been convicted of any felony or misdemeanor involving moral turpitude;
- The defendant has not previously been placed on probation; and
- The defendant is unlikely to commit another offense other than a Class 3 misdemeanor.
Use form AOC-CR-632D.
G.S. 90-96
Two similar but distinct conditional discharges are described in G.S. 90-96, subsection (a) and subsection (a1). Both apply to eligible defendants who plead guilty to or are found guilty of the following offenses:
- Misdemeanor possession of a controlled substance in Schedules I–VI;
- Felony possession of a controlled substance under G.S. 90-95(a)(3); or
- Misdemeanor possession of drug paraphernalia under G.S. 90-113.22 or marijuana drug paraphernalia under G.S. 90-113.22A
Eligible defendants are those who:
- Have no prior felony convictions of any type;
- Have no prior convictions under Article 5 of G.S. Chapter 90; and
- Have never received a prior discharge and dismissal under G.S. 90-96 or 90-113.14.
Subsection (a). Conditional discharge under G.S. 90-96(a) is mandatory for consenting, eligible defendants unless the court determines, with a written finding, and with the consent of the district attorney, that the defendant is inappropriate for a conditional discharge for factors related to the offense. Probation under G.S. 90-96(a) may include conditions in the court’s discretion. Use form AOC-CR-619D.
Subsection (a1). Conditional discharge under G.S. 90-96(a1) is within the discretion of the court for eligible defendants. For the purpose of determining eligibility under subsection (a1), prior convictions and prior conditional discharges that occurred more than seven years before the date of the current offense do not count. Probation under subsection (a1) must be for at least one year, and shall include a condition requiring the defendant to enroll in and complete Drug Education School within 150 days of being placed on probation, unless no school is available or there are other extenuating circumstances. Use form AOC-CR-627D.
Toxic vapors. G.S. 90-113.14(a) and (a1) describe two conditional discharges for toxic vapor (huffing) offenses that are very similar to G.S. 90-96(a) and (a1), respectively. Both are discretionary.
Prostitution. Conditional discharge is mandatory for consenting first offenders of prostitution. The probation shall be for 12 months and shall require the conditions listed in G.S. 14-204(b). G.S. 15A-1341(a3). Use form AOC-CR-628D.
Drug Treatment Court. The court may, without entering a judgment of guilt and with the consent of the defendant, place a convicted defendant on conditional discharge probation to participate in the Drug Treatment Court Program. G.S. 15A-1341(a5). Use form AOC-CR-633D.
Gang offenders. Certain first-time gang offenders under the age of 18 at the time of their offense are, with their consent, eligible for conditional discharge as provided in G.S. 14-50.29. The probation must be for at least one year. Use form AOC-CR-621D.
Cyber-bullying. Defendants convicted of cyber-bullying for offenses committed before age 18 are eligible for a discretionary conditional discharge under G.S. 14-458.1(c). G.S. 14-458.2(d) describes a similar conditional discharge for students convicted of cyber-bullying of a school employee.
Use form AOC-CR-635 for modification or disposition of any of the above types of conditional discharges.
Would love to see a piece on what is a “misdemeanor
involving moral turpitude”
From IDS: This Court has defined crimes involving moral turpitude to include “act[s] of baseness, vileness, or depravity in the private and social duties that a man owes to his fellowman or to society in general.” Dew v. State ex rel. N.C. Dep’t of Motor Vehicles, 127 N.C. App. 309, 311, 488 S.E.2d 836, 837 (1997) (internal quotations and citation omitted). Moral turpitude may also be defined as “[c]onduct that is contrary to justice, honesty, or morality.” Black’s Law Dictionary, 1101 (9th ed. 2009).
Regarding conditional discharges under 90-96, I have always thought that there was a distinction between the applicability between sections (a) and (a1), but I recently saw a court of appeals opinion from 2015 that applied section (a) where the facts showed the defendant having a prior marijuana conviction. The court further held that section (a1) “provides guidance for determining whether a conviction is a ‘first conviction'” – implying that the two sections were not dichotomous but supplementary. The case is State v. Clark, 2015 N.C. App. Lexis 37.
What does this mean? That the court of appeals is having as much difficulty with this statute as everyone else?