G.S. 90-96 Limbo

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The Justice Reinvestment Act made conditional discharge under G.S. 90-96(a) mandatory for eligible, consenting defendants. The law was amended last year to make it discretionary again for offenses committed on or after December 1, 2013. S.L. 2013-210. But while it was mandatory, a lot of defendants were placed on probation under G.S. 90-96(a). Naturally, many of those cases have come to an end. The statute itself envisions two possible conclusions to a G.S. 90-96 case: failure and success.

A person fails his or her G.S. 90-96 probation by violating a condition of supervision. When that happens the court “may enter an adjudication of guilt and proceed as otherwise provided.” The court should use form AOC-CR-622 to find the violation and order entry of judgment for the defendant’s deferred conviction. Then it would enter judgment and sentence the defendant for the conviction using a regular judgment form (active or suspended, as the case may be). In general, violations of G.S. 90-96 probation are subject to the same procedures applicable to ordinary probation cases. See State v. Burns, 171 N.C. App. 759 (2005) (“In the absence of a provision to the contrary, and except where specifically excluded, the general probation provisions found in Article 82 of Chapter 15A apply to probation imposed under [G.S.] 90-96.”).

A person succeeds on G.S. 90-96 probation by “fulfilling of the terms and conditions” of his or her probation. When that happens, the court “shall discharge [the defendant] and dismiss the proceedings against him.” G.S. 90-96(a). The discharge and dismissal is mandatory, but not automatic. The court must complete the top portion of form AOC-CR-622 to formally dismiss the conviction and discharge the defendant.

Sometimes a defendant will reach the end of his or her G.S. 90-96 probation without any allegation of violation, but the judge considering the discharge and dismissal may have information indicating that all of the terms and conditions of probation were not actually “fulfilled.” For example, the court may know that the defendant has not paid all the money he or she owed in the case, or that he or she has not completed the assigned course of treatment.

Can the court nonetheless enter the discharge and dismissal? Must the court do so?

I don’t think there’s a clear answer. To the extent that “general probation provisions” of Article 82 apply in G.S. 90-96 matters, it could be argued that the burden is on the State to prove noncompliance, and that fulfillment should be presumed in the absence of a violation. On the other hand, discharge and dismissal in a G.S. 90-96 case requires an affirmative order from the court that isn’t required to bring an ordinary probation case to a successful (from the defendant’s point of view) conclusion. I can understand a judge’s reluctance to order the conditions fulfilled if he or she knows they haven’t been. The problem with that view, however, is that it leaves the defendant in a perpetual middle ground not clearly contemplated by the statute itself.

An approach that may help avoid the issue is to schedule a review hearing near the end of the defendant’s period of supervision. (There is a space to schedule such a review on form AOC-CR-619A/B/C, the form used to place the person on G.S. 90-96 probation at the outset.) The hearing should be scheduled long enough before the case expires that there will be sufficient time to file a violation report on any perceived noncompliance, or to extend the probation as necessary to give the defendant time to complete any condition yet to be fulfilled. By reviewing the probation in this way the court will increase the chances that the case will end as a clear success or failure.

7 comments on “G.S. 90-96 Limbo

  1. Re: 90-96 cases, do you feel that probation officers have the statutory authority to arrest these cases, as in any other normal probation case?

    Below is a quote from your article-
    “In general, violations of G.S. 90-96 probation are subject to the same procedures applicable to ordinary probation cases. See State v. Burns, 171 N.C. App. 759 (2005) (“In the absence of a provision to the contrary, and except where specifically excluded, the general probation provisions found in Article 82 of Chapter 15A apply to probation imposed under [G.S.] 90-96.”).”

  2. If a probationer has complied with all requirements of the 90-96 probation but has not paid all fines, etc., he or she could and should provide the probation officer with proof on inability to pay, and request that the DA also get a copy. In a case I am very familiar with recently, the probationer was violated 3 months prior to the end of probation term for non-payment of all fees ( the probation officer insisted on all fees being paid 120 days prior to expiration), and when the matter came to court, documents were submitted showing the dire circumstances of the probationer..the DA suggested remitting ( forgiving ) the remainder of the fees and discharged the probationer. Of course full compliance to the best of the probationers ability would be expected for such a break, but willfulness is the critical issue; if someone cannot afford to pay, the violation is not wilfull.

  3. How does the State collect after the person has died? Does it imprison the ashes or skeletal remains for non compliance? Does it lien on the family for its pound of flesh? The probationer meet all the obligations the State ordered BUT failed to finish paying the undisclosed $40 something a month FEEs added after the stated amount. Does the body need to be exhumed or the urn turned over for jail time? The injured person in this matter did NOT wish to press criminal charges, but the State insisted on getting its pound of flesh rather than simply ‘retiring the injured party’ to the same condition they were in before the incident. Compounding the costs 4 fold or more.

  4. I assume that it is fair to say that the Court must act within the period of probation, per §15A-1344(f). Absent a review hearing during, or a violation report filed within, the period of probation, the Court would not have jurisdiction to enter a judgment.

    I would also assume that the discharge would not be available since the Court would not be able to complete the top portion of form AOC-CR-622 to formally dismiss.

    These cases, outside the period of probation with no violation filed, would live in limbo. A conviction without the ability to impose further judgment.

  5. Seems like a consent MAR to give the probationer a second chance to comply would be the best solution all around. Takes the case out of limbo and gives the court a chance to schedule a new review hearing prior to the end of the re-started probation period.

  6. I was charged and convicted with 2 misdemeanor charges of paraphernalia and possession of less than half an ounce, ( it was less than half a gram….a crumb even) in north carolina and I got a 90-96 with a year of supervised probation. My question is, I’ve had many friends get a 90-96″s and none had supervised probation. What happened to me? My lawyer said its impossible to get unsupervised with a 90-96 but I’ve seen it happen. Can’t I appeal or claim corpos delecitus of something like that because of no injured party, unless the state is the injured party?

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