At a recent conference, a judge confessed to me that he and his fellow judges drive the clerks crazy because they all pronounce judgment differently. They use different words to order the same things. That’s fine to a point—this isn’t Hogwarts, and a sentence is not a magic spell. (If it were, and you wanted to punish somebody by, say, placing them in a full body-bind, obviously you’d just say petrificus totalus and that would be that.)
For us Muggles here in North Carolina, I thought it might be useful to offer some standard language that a judge might use to order the most common types of sentences. These are just suggestions, drawn from the General Statutes and the language used on the boilerplate judgment forms.
Crime of Conviction
To state the crime(s) being sentenced:
“The defendant [pled guilty to/was found guilty of/pled no contest to] [state conviction offense(s)].”
If multiple offenses are to be consolidated for judgment:
“The Court orders that those convictions are consolidated for judgment and that the defendant will be sentenced as follows.” (Note: It might be helpful for the judge to identify which of the defendant’s convictions is the “most serious offense,” and therefore the lead conviction under G.S. 15A-1340.15(b). Sometimes it will not be obvious, and it can make a difference in the ultimate sentence, as described here.)
Prior Record Level/Prior Conviction Level
To state the defendant’s felony prior record level:
“The Court has determined that the defendant has ___ prior record point(s) and is therefore Prior Record Level [I/II/III/IV/V/VI].”
If the same elements bonus point applies:
“The Court finds that all elements of the present offense are included in a prior offense.”
For each out-of-state prior conviction being counted for prior record points like an analogous North Carolina crime (and for which the proponent of substantial similarity has made sufficient proof):
“The Court finds by a preponderance of the evidence that the offense is substantially similar to a North Carolina offense and that the North Carolina classification assigned to this offense is correct.”
To state the defendant’s misdemeanor prior conviction level:
“The Court has determined that the defendant has ___ prior conviction(s) and is therefore Prior Conviction Level [I/II/III].”
Active Sentences
To impose an ACTIVE sentence of imprisonment for a felony:
“The defendant shall be imprisoned for a minimum term of ___ months and a maximum term of ___ months in the custody of the North Carolina Division of Adult Correction.”
To impose an ACTIVE sentence of imprisonment for a misdemeanor:
“The defendant shall be imprisoned for a term of ___ days in the custody of [the Sheriff of ______ County/the Statewide Misdemeanant Confinement Program].” (Note: The proper place of confinement may be determined by reference to the chart available here.)
Probationary Sentences
To place a defendant on PROBATION, the judge would, after imposing a term of imprisonment using the active sentence language set out above, suspend that term and order probation as follows:
“The execution of this sentence is suspended. The defendant is sentenced to a [Community/Intermediate] punishment of [supervised/unsupervised] probation for ___ months.” (Note the importance of affirmatively stating whether the sentence is Community or Intermediate punishment. For offenses committed on or after December 1, 2011, it is often impossible to tell from the conditions of the sentence itself, for the reasons described here.)
If that period of probation is outside of the default statutory range:
“The Court finds that a [longer/shorter] period of probation is necessary than that which is specified in G.S. 15A-1343.2(d).”
To exempt the defendant from a regular condition of probation:
“The defendant is subject to all regular conditions of probation except for [specify condition(s)], from which the defendant is specifically exempted.” (Note that regular conditions apply by default and need not be stated in open court. Exercise caution when naming conditions by number, as the numbering varies on different versions of the forms.)
If the defendant is sentenced to Intermediate punishment and the judge wishes to exempt the defendant from one or more of the four Intermediate conditions of probation that apply by default under G.S. 15A-1343(b4):
“The defendant is subject to all intermediate conditions of probation except for [specify condition(s)], from which the defendant is specifically exempted.”
To order special conditions of probation:
“The defendant shall also comply with the following special conditions, which the court finds are reasonably related to the defendant’s rehabilitation: [state conditions].”
To order special probation (a split sentence):
“The defendant is sentenced to special probation, which shall include a term of imprisonment of __ [days/months] in the custody of [the North Carolina Division of Adult Correction/the Sheriff of ______ County/Other {e.g., a designated treatment facility}]. The defendant shall obey the rules and regulations of the Division of Adult Correction governing the conduct of inmates while imprisoned, and shall report to his/her probation officer within 72 hours of his/her discharge from the term of imprisonment.” (Note: The proper place of confinement for the split sentence may be determined by reference to the chart available here. The court should specify whether the imprisonment will be served continuously, in noncontinuous intervals, or at the direction of the probation officer.)
Multiple Judgments
To order CONSECUTIVE terms of imprisonment (for either active or suspended sentences), the second and subsequent sentences should refer back to the preceding sentence(s) as follows:
“This sentence shall begin at the expiration of the sentence imposed in file number ______.”
The court does not need to say anything to impose CONCURRENT sentences, as sentences run concurrently by default.
To order a CONTINGENT period of probation—that is, a period of probation that does not begin until the defendant completes an active term of imprisonment in another case, as described here—say:
“This period of probation shall begin [when the defendant is released from incarceration/at the expiration of the sentence] in file number ______.” (For reasons discussed here, I think the first option in the brackets is arguably the only correct choice, but both choices are reflected on the judgment form.)
Jail Credit
To award jail credit for pretrial confinement:
“The defendant shall be given credit for ____ days spent in confinement as a result of this charge.” (Note that the “the judge presiding”—not the clerk—should award a particular number of days of credit, and not merely state that the defendant should be given credit for time already served. G.S. 15-196.4.)
If the defendant receives a split sentence, the court may, under G.S. 15A-1351(a), order that jail credit be applied to the split now, or applied to the suspended sentence in the event of revocation:
“This credit is to be applied to [the defendant’s term of imprisonment/the imprisonment required for the defendant’s term of special probation].”