Can a probationer be revoked for a violation of the “commit no criminal offense” probation condition if the violation report alleges only that the person has been charged with a crime?
Sentencing
Probation Pathways in a Justice Reinvestment [as Amended] World
These days, figuring out the permissible ways to respond to a probation violation is easy. All you need to know is the date of the offense for which the person is on probation. And the type of offense (felony, Structured Sentencing misdemeanor, or DWI). And the date the person was placed on probation. And the date of the alleged probation violation. And bear in mind, of course, that the person may be on probation for more than one offense, with different rules applicable to each case. Once you have all that—piece of cake!
More about What Is and Isn’t Absconding
Two new cases from the court of appeals, both involving defendants named Johnson, shed more light on the meaning of “absconding” from probation.
When CRV Is Worse than Revocation
Some felony probationers ordered to serve a period of confinement in response to violation (CRV) wind up spending more time behind bars than they would have if their probation been revoked.
Special Sentencing Rules
Aside from a few notable exceptions (impaired driving, drug trafficking, and first-degree murder), most North Carolina crimes are sentenced under Structured Sentencing. Some crimes have additional sentencing wrinkles—a kind of Structured Sentencing plus—that kick in by statute. Today’s post is a noncomprehensive list of some of the most common offense-specific sentencing provisions.
Talking about Sentencing at Trial
It’s like Fight Club: the first rule of talking about sentencing at trial is don’t talk about sentencing at trial.
All the Possible Sentences
Let’s brainstorm all the possible sentences for a Prior Record Level I defendant convicted of two Class H felonies. I’ll go first, listing my thoughts roughly from most to least severe (from the defendant’s point of view).
Interpreting Sex Offender Consequence Laws: Contact with Minors
A few years ago I began tracking and compiling the consequences that attach to an offense subject to sex offender registration (a registrable offense). In preparation for an upcoming course, I just updated my Consequences Paper.
The list of consequences continues to grow. So, too, has litigation over them. A recent court of appeals decision, State v. Barnett (Jan. 19, 2016), considered the limits on the court’s authority to enter a no-contact order against a person convicted of a registrable offense. (Jamie Markham wrote a blog post about another aspect of the decision—whether attempted rape is an aggravated offense and subject to stricter registration and monitoring requirements. It isn’t.) [After publication of this blog post, the North Carolina Supreme Court reversed the Court of Appeals’ decision in Barnett. The Supreme Court agreed that G.S. 15A-1340.50 protects the victim of the offense, not third parties, and a judge may not prohibit contact with third parties for their protection; however, the Supreme Court held that, on appropriate findings, a judge may prohibit the defendant from indirectly contacting the victim through specifically identified third parties, such as the victim’s family.]
Miller v. Alabama Applies Retroactively (and Then Some?)
The Supreme Court held Monday that the rule from Miller v. Alabama, 567 U.S. __ (2012), applies retroactively. In Miller, the Court held that a sentencing regime that makes life without parole mandatory for a murder committed by a defendant under the age of 18 is cruel and unusual punishment. In Montgomery v. Louisiana, 577 U.S. __ (2016), the Court said that rule likewise applies to defendants whose cases were final before Miller was decided on June 25, 2012.
The “Evidence Necessary to Prove an Element” Limitation on Aggravating Factors
Under G.S. 15A-1340.16(d), “[e]vidence necessary to prove an element of the offense shall not be used to prove any factor in aggravation.” The general idea behind that rule is to prevent the defendant from getting extra punishment via an aggravating factor for something that is inherent in the crime of conviction. A similar prohibition existed under Fair Sentencing, so we have a relatively large body of case law that helps us understand the rule.