G.S. 90-96 Limbo

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.