Today’s post is about a recurrent question related to jail credit for periods of confinement in response to violation (CRV). First, a 30-second refresher on the basics of CRV.
When a probationer commits a violation other than a new criminal offense or absconding, the court may order a period of confinement in response to violation. CRV is 90 days for a felon and up to 90 days for a misdemeanant. If a person is on probation for multiple offenses, CRV periods “shall run concurrently on all cases related to the violation.” G.S. 15A-1344(d2). After the defendant has received two CRV “strikes” in a particular case, he or she may be revoked for any subsequent violation. Any CRV periods served in the revoked cases “shall be credited pursuant to G.S. 15-196.1.” Id.
That brings us to today’s question. Suppose a defendant is on probation for three convictions with 8–19 month suspended sentences in each case, set to run consecutively in the event of revocation. Assume the conditions of probation are identical in all three cases. During his probation, the defendant commits a technical violation for which the court imposes a 90-day CRV in each case. As noted above, under G.S. 15A-1344(d2), these three CRV periods must be served concurrently. So the defendant serves 90 days in prison and returns to probation. How is that time credited if the defendant’s probation is later revoked?
It seems to me that the defendant must get 90 days of credit against each of the three sentences, for a total of 270 days. And I think that’s the case regardless of whether the sentences are run consecutively or concurrently upon revocation. The time was in fact served in each case, and no statute directs the court to disregard it when completing the revocation order in an individual case.
If that feels strange, it’s probably because it’s different from how we credit pretrial jail credit when a defendant is held on multiple charges. In that context, when a defendant winds up getting consecutive sentences, we do not multiply any shared credit for pretrial confinement by the number of consecutive sentences for which the defendant is imprisoned. That is so because G.S. 15-196.2 tells us not to multiply it. The reason for that rule is that when a judge winds up ordering consecutive sentences, we learn for the first time that the defendant has, to that point, been serving the only first sentence in the consecutive string, and that service of the second and subsequent sentences is yet to come. And so we credit the pretrial confinement only once.
Neither G.S. 15-196.2 nor the rationale behind it applies to CRV. First, G.S. 15A-1344(d2) makes no reference to the non-multiplication rule of G.S. 15-196.2; it says only that prior CRV periods shall be credited pursuant to G.S. 15-196.1. Second, unlike pretrial confinement, CRV is mandatorily and unmistakably concurrent from the get-go. Yes, the remainder of any activated sentences may wind up being served consecutively, but that does not trump the legislature’s command that any portion of the sentences served as CRV “shall run concurrently.”
I should note that not everyone agrees with me on this. I know some clerks will not credit CRV time against multiple cases, and I’ve certainly heard from judges, prosecutors, and probation officers who find that sort of double (or triple, as in my example above) counting of the time to be downright offensive. To be sure, crediting of the time in this way lessens the impact of any consecutive suspended sentences ordered by the court. But I don’t see how the law can be read to allow for the un-crediting of time actually served in each case, when the General Assembly has ordered that portion of it to be served concurrently.
The issue can be avoided. The court is never required to order CRV. If a defendant is on probation for multiple cases and violates probation in each of them, the court could order CRV in only one of the cases and use a different response in the others. There is a trade-off in the sense that the probationer does not accrue a CRV “strike” in the other cases. But it turns out that hardly anybody gets to his or her third CRV strike before probation ends. One of the following things almost always happens first: the period of probation expires or is terminated, the suspended sentence gets used up (especially in misdemeanor cases), or the probationer commits a new crime or absconds.
my friend was on parole and probation and she violated her parole by bot following the rules under parole and she received a 90 day post release crv……2 months later she was found by the court guilty of violating the felony probation she was on also by the same rules for the same time…she is in prison almost done with her current crv….she is telling me they are going to serve her the second crv?!………I thought you can only serve one crv for multiple convictions………isn’t this illegal…she should get out march 9th …hence 90 days …not may 3rd which is stranger………..
I have a offender with a 75 sentence (credit for 30 days) and another case 45 days (with credit 22 days). Assuming offender gets 75 day CRV for both does offender get credit for the full 52 days he spent in custody? leaving him only 23 days?
First, the longest possible CRV on the 45-day case would be 45 days. CRV cannot be any longer than the defendant’s remaining suspended sentence.
As for the jail credit, the prehearing credit for each case must be applied to each CRV. G.S. 15A-1344(d2). That means there will be 45 days left to serve on the 75-day CRV and 23 days left to serve on the 45-day CRV. The CRVs must be served concurrently, so the defendant will serve 45 total days (the length of the longer CRV) and then be done with the CRVs (and probation).
So, yes, the defendant gets 52 total days of credit when look at the total credits applied to both cases, but it does not leave him with only 23 days left to serve.
?, Im totally clueless when it’s comes to this subject, I have a friend who is doing 19mths, before third current bid he did 101 days in county that he never got jail credits for now he is trying to get them for this recent conviction, our clerk of court is telling him he will not get them because it was for a different crime he did the 101 days on, so does this sound right, does this 101 days he spent in county jail just go unheard of and like he was never there basically wast d time? Please inquire what should we do?
my husband was on felony probation. His probation was terminated and his sentence was activated. But hes already got 137 days credited. His sentence is 6-18 months so how long will he actually do? Does that mean its possible it can come off of the 6 months. He can be out in 2 months 40 some days?
My finacé complete 45 in jail before he was convicted of his crime and sent to prison. Of those 45 days the judge only gave him a credit of 20 days towards his time served. Is this legal? His case manager keeps telling him to get my to contact case records to get it fixed but when I spoke with someone in case records she only keeps repeating the the judge gave him 20 days so that’s what he has. I know that already my problem is he was in the county for 45 and is missing time he served that will help he be released sooner. What do I do to get his time applied?
I’m going to be going to jail on a 90-day crv can I get my jail credit
I have 4 class 1 misdemeanor cases. Concurrent to each other. My sentence by the judge was 45 days suspended and 18 month supervised probation. If my PO violates me for non-payment how many days will I spend in jail all together.