May 26, 2016
The district attorney decides when to defer prosecution. But if that deferral includes probation under G.S. 15A-1341(a1), the court has a role in the process—including what to do in response to a violation of the deferred prosecution agreement. Sometimes the State and the judge are on the same page. Sometimes they aren’t.
May 19, 2016
I have started to get questions about G.S. 15A-1380.5, a repealed statute that used to provide for judicial review of sentences to life without parole after 25 years of imprisonment. It’s too early for a court to be applying the law just yet—the first reviews shouldn’t happen until 2019—but we’re getting close, and people are talking about it. Today’s post describes the law.
May 12, 2016
In 2008 the General Assembly created the new crimes of rape and sexual offense with a child by an adult offender (G.S. 14-27.2A and -27.4A, respectively). S.L. 2008-117. They have special sentencing rules, described here, including the possibility of a higher maximum sentence if the judge finds “egregious aggravation” in the case. Discussing the law immediately after it passed in 2008, John Rubin wrote (here, on page 3) that placing the responsibility for determining egregious aggravation on the judge—not the jury—was “likely unconstitutional” under Blakely v. Washington. As my kids like to say, “Nailed it.” State v. Singletary, decided by the court of appeals last week (and mentioned briefly in last week’s News Roundup), ratified John’s view.
May 2, 2016
The North Carolina Sentencing and Policy Advisory Commission and the Division of Adult Correction recently released their Correctional Program Evaluation: Offenders Placed on Probation or Released from Prison in FY 2013—known better as the recidivism report. Every biennial report is interesting—who wouldn’t want to know how present sentencing choices affect future crime?—but this report is especially interesting because it is the first one to include a sizable number of defendants sentenced and supervised after Justice Reinvestment. We can begin to see if the law is working as intended.
April 21, 2016
April 14, 2016
When can money owed as the result of criminal case be docketed as a civil judgment?
March 31, 2016
Probation that includes incarceration is “special probation.” But it’s still probation.
March 29, 2016
Much has been written—and much of it by the Supreme Court—on the proper way to find aggravating factors for sentencing. After Apprendi v. New Jersey, Blakely v. Washington, and countless cases at the state level, it is of course clear that a defendant has a Sixth Amendment right to have aggravating factors proved to a jury beyond a reasonable doubt. Once sentencing factors are properly found, however, responsibility shifts back to the judge to decide what to do about them. The rules for weighing factors are as loosey-goosey as the rules for finding them are rigid.
March 17, 2016
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?
March 9, 2016
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!