Delaying the Start of a Sentence

Sometimes, after being convicted and sentenced to jail or prison, a defendant asks for a little time to get his or her affairs in order before the sentence begins. Can the court delay the start of the sentence?

Under G.S. 15A-1353(a), “[u]nless otherwise specified in the order of commitment, the date of the order is the date service of the sentence is to begin.” So, the default is that the sentence will start immediately, but the statute allows the court to specify some future date for the sentence to begin. The official commentary accompanying the statute puts it even more plainly: “Although the presumptive beginning date for the term of imprisonment is the date of the commitment order, the judge may specify a delayed beginning dated to permit the defendant to get his affairs in order.”

The same authority probably applies when the court revokes a defendant’s probation and activates his or her suspended sentence. The official commentary to G.S. 15A-1353 says that “[s]ubsection (a) applies to both an initial sentence to imprisonment and to the activation of a sentence following probation revocation.” There is, perhaps, some argument to the contrary; G.S. 15A-1344(d) says that a “sentence activated upon revocation of probation commences on the day probation is revoked.” But I think that provision is directed at the rule that activated sentences run concurrently with other sentences unless the revoking judge says otherwise (a rule discussed long ago on this blog, here), and not intended as an exception to G.S. 15A-1353(a).

A special provision, discussed here, applies for pregnant defendants. The court may specify that a woman’s sentence does not begin until at least six weeks after the birth of her child or other termination of the pregnancy. G.S. 15A-1353(a).

Once begun, an active sentence for a crime sentenced under Structured Sentencing must be served continuously. A judge does not have authority to order the sentence served on weekends or some other non-continuous days, State v. Miller, 205 N.C. App. 291 (2010) (discussed here), as he or she does with split sentences (under G.S. 15A-1351(a)) or impaired driving sentences (under G.S. 20-179(s)).

Of course, delaying the onset of a defendant’s sentence carries with it the risk that the person will not report to prison at the appointed time. What to do then? An order for arrest could be issued on the grounds that it is necessary to take the defendant into custody. G.S. 15A-305(b)(5). The defendant could also be ordered to show cause why he or she should not be held in criminal contempt for disobeying the court’s order to report. I am sometimes asked—typically in the context of probationers who fail to report to the jail to serve part of a split sentence—whether the failure to report could also be construed as an escape. I don’t think so. Our escape statute includes a provision making it a crime to fail to return to prison after a work release assignment or other temporary leave, G.S. 148-45(g), but I read that provision as limited to failures to “return,” and not applicable to failures to show up in the first place.

Given the risks associated with delaying a sentence, I don’t get the impression that it happens very often. Am I right about that? Do courts accomplish roughly the same thing through other means, such as by continuing prayer for judgment prior to sentencing rather than delaying the sentence itself? When a sentence is delayed, how is it done operationally? The statute concerning pregnant defendants expressly allows the court to “impose reasonable conditions upon defendant during such waiting period to insure that defendant will return to begin service of the sentence,” but there is no generally applicable statutory grant of authority to set release conditions after judgment (unless G.S. 15A-536, allowing the court to set conditions for defendants “awaiting sentence,” can be read broadly enough to apply). Do courts nonetheless set conditions? As always, I would appreciate any legal, practical, or anecdotal feedback our readers can provide.