Extending Probation

How long can a defendant be on probation for a single conviction?

A.      Five years.

B.      Eight years.

C.      It depends.

The best answer is C.

A judge can sentence any defendant (community or intermediate, misdemeanant or felon) to probation for up to five years on a finding that a period longer than the statutory defaults set out in G.S. 15A-1343.2(d) is necessary. But the original period of probation tells only part of the story. The real difficulty in answering the question stems from the fact that the General Statutes describe two different types of probation extensions, ordinary extensions under G.S. 15A-1344(d), and special-purpose extensions under G.S. 15A-1342 or G.S. 15A-1343.2. (I made up the terms “ordinary” and “special-purpose” for clarity; they do not appear in the General Statutes.)

Under G.S. 15A-1344(d), ordinary extensions may, after notice and hearing, be ordered at any time prior to the expiration of probation for “good cause shown”-no violation need have occurred. Probation may be extended multiple times under this provision, but the total maximum probation period is five years.

By comparison, special-purpose extensions can be used to extend the probationer’s period of probation by up to three years beyond the original period of probation, including beyond the five-year maximum, if all of the following criteria are met:

1.       The probationer consents to the extension;

2.       The extension is being ordered during the last six months of the original period of probation; and

3.       The extension is necessary to complete a program of restitution or to complete medical or psychiatric treatment. G.S. 15A-1343.2.

Extensions for these special purposes are the only way to extend a period of probation beyond five years, and only when the original period was five years could probation be extended to as long as eight years under this provision. If, for example, the original period of probation was three years, probation could only be extended by a special-purpose extension out to six years, not eight. And it would be improper to use an ordinary extension to extend probation from three years to five years and then use a special-purpose extension to extend from five years to eight. Special-purpose extensions may only be done in the last six months of the original period of probation, and once you’ve done an ordinary extension, you’re no longer in the original period.

I realize that many probationers consent to extensions-even those that go beyond five years-to get more time to pay money owed or complete some other condition of probation. But the court’s power to act in probation matters is a creature of statute, State v. Hicks, 148 N.C. App. 203 (2001), and you can’t create jurisdiction by consent. See State v. Satanek, __ N.C. App. __, 660 S.E.2d 623 (2008) (vacating a defendant’s revocation of probation for lack of subject matter jurisdiction, notwithstanding the defendant’s consent to multiple extensions of probation).