The rules for sentencing a defendant to special probation—a split sentence—are set out in G.S. 15A-1351(a). Under that law, the court can order as part of a probationary sentence that the defendant serve a period of imprisonment not exceeding one-fourth the maximum suspended sentence imposed (or, in impaired driving cases, one-fourth of the maximum penalty allowed by law). Periods of special probation confinement can be for a continuous period or for noncontinous periods. If for noncontinuous periods, the time behind bars must be in a jail or treatment facility (not DOC), and it must be completed within two years of conviction (so the judge could not, for example, order someone to serve weekends in jail for five years). Periods of imprisonment ordered under G.S. 15A-1351(a) are to be served “at whatever time or intervals . . . the court determines.” G.S. 15A-1344(e) sets out essentially the same rules for special probation ordered as a modification of probation in response to a violation.
I am sometimes asked just how explicit a judge needs to be when determining the “time or intervals” at which special probation confinement will be served. Form AOC-CR-603, Page Two, Side One, gives the court the option of imposing a specific day, date, and hour for the defendant to report to the jail, perhaps to be repeated at intervals for a designated term of consecutive weeks. The form also allows the court to order that the “sentence shall be served at the direction of the probation officer” within a set period of days or months from entry of the judgment. Can the court take it a step further and say that the probation officer can schedule the jail time “as necessary”—in the officer’s discretion—to respond to misbehavior by the offender?
I generally advise judges that they may not do that. I think G.S. 15A-1351(a) and -1344(e) probably allow the court and the probation officer some flexibility in setting the parameters for service of a split sentence. The court could, for instance, tell the probation officer to work with the sheriff or jail administrator to schedule a split at a time that doesn’t place an unreasonable burden on the jail. But the court should—as the form directs—indicate a completion deadline for the imprisonment. What I think the court cannot do is leave any doubt as to whether the split will be served at all. Jail time should not be contingent on some additional misconduct by the offender, held in the probation officer’s hip pocket until needed.
An opinion letter from the Attorney General reached the same conclusion. Asked whether a court could impose a condition of probation allowing a probation officer to impose “up to 30 days of incarceration if deemed necessary for minor infractions or technical violations,” the AG said no. Because doing so would violate constitutional due process and the statutory framework set out in G.S. 15A-1345, the opinion letter advised DOC to “instruct its probation officers not to attempt to utilize such authority.” 60 N.C. Ap. Atty. Gen. 110 (1992).
I’m not aware of any North Carolina case law on point, but the AG’s advice jibes with court decisions from other states. For instance, the Nebraska Supreme Court struck a provision purporting to allow a probation officer to “waive” some of the jail days imposed on a defendant as a condition of probation. State v. Lee, 237 Neb. 724 (1991). The court ruled that the sentence was invalid, finding it “clear that in probation cases, the jurisdiction to commit offenders to jail, or to release offenders from jail terms, rests solely with the trial court. Jail time is to be imposed by judges. The trial court may not delegate the authority to impose a jail sentence, or to eliminate a jail sentence, to a nonjudge.” Id. at 725. The Illinois Court of Appeals reached a similar conclusion in People v. Thomas, 217 Ill. App. 3d 416 (1991) (“Although it is clear the court intended to remit the remaining 30 days’ imprisonment upon defendant’s successful completion of the program, it left to the probation department the decision as to whether defendant could be deemed to have been successful. This was not a function that could properly be delegated when the question of further incarceration is at stake.”).
There is a legislative proposal on the table that would allow a probation officer, as a matter of delegated authority under G.S. 15A-1343.2, to respond to an alleged violation of probation in a Structured Sentencing case (but not in a DWI case) by ordering a probationer to “[s]ubmit to a period or periods of confinement in a local confinement facility for a total of no more than six days per month.” H 642, sec. 1(d) and 1(e). That law would require an officer to get approval from a chief probation officer and a waiver of rights from the offender before ordering the confinement, but the order does not appear to be reviewable by a court. That proposal and others in the bill are worth a look. I welcome your thoughts.