There are about 10,000 people on post-release supervision (PRS) in North Carolina. Some of them get charged with a new crime. That new charge usually prompts the issuance of a PRS warrant. And when a person is arrested on one of those, it is generally understood that there is no entitlement to bail. So, even if the new charge is relatively minor, the post-release supervisee will often be held in jail until the new charge is resolved. A question that comes up again and again is whether the defendant is entitled to jail credit against the new conviction for the time spent detained on the pending PRS violation.
The old rule was no. As discussed in this prior post from 2015, DAC used to take the position that a person detained on a pending PRS violation was “serving a sentence imposed for another offense” within the meaning of G.S. 15-196.1, and therefore not entitled to credit toward any other sentence. If a court awarded jail credit on a new charge and DAC was aware that the person was also being held on a pending PRS violation at that time, they would write back to the court, flagging it as an error. The idea was that detention on a pending PRS violation was a “conditional revocation” under the language of G.S. 15A-1368.6(a), and thus counted as service of the sentence, barring credit toward anything else.
DAC no longer applies that interpretation. If a court awards jail credit to a new charge for time when a PRS violation was also pending, DAC will not generally write back to the court (unless there’s something else wrong with the judgment). Some clerks and others still have in mind a rule of thumb that a person cannot be awarded credit toward a new charge when a PRS violation is also pending, but that is probably a response to audit letters received under DAC’s former interpretation.
There is no statutory prohibition on granting the credit—unless the sentence for the new offense is run consecutively the previously imposed sentence. G.S. 15-196.2 (“Consecutive sentences shall be considered as one sentence for the purpose of providing credit, and the creditable time shall not be multiplied by the number of consecutive offenses for which a defendant is imprisoned.”). Even that should be relatively rare. The new criminal charge is typically handled before the PRS violation (the Parole Commission ordinarily waits to see what will happen with the new criminal offense before handling the pending violation), and so any sentence imposed for the new offense is likely to start the day it is imposed. The ensuing PRS revocation will necessarily run concurrently with the new sentence; the Parole Commission will carry it out the revoked sentence as originally imposed, and the sentence for the new conviction didn’t yet exist at that time.
In the relatively rare circumstance that the PRS violation is handled first, the defendant would clearly not be entitled to credit for any further confinement on the new criminal charge after PRS is revoked. At that point the defendant actually would be “serving a sentence” and thus not entitled to credit toward any other charges. However, any days of confinement shared between the new criminal charge and the pending PRS violation up to the day of revocation should still be credited to the new charge, too, as long as the sentence for the new offense is set to run concurrently with the previously imposed sentence. If you’re doing otherwise for fear of DAC sending the judgment back, you’re unnecessarily depriving the defendant of creditable time.