Jail Credit for Functionally Consecutive Sentences

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Suppose a defendant is being held on two charges, Charge A from County A and Charge B from County B. He was arrested for both at the same time and has been held on both for the same number of days. For whatever reason, Charge A is handled first (perhaps because County A has managed to resume pandemic court operations more quickly than County B), and let’s say it results in a sentence to time served. If Charge B ultimately results in a conviction, can the defendant receive jail credit for the days of pretrial confinement that were already applied to Charge A?

I think so, if the second judge doesn’t affirmatively order Sentence B to run at the expiration of Sentence A.

G.S. 15-196.2 is the statute that governs how to apply jail credit when a person has accrued creditable time on more than one pending charge. If the charges result in consecutive sentences, those sentences should be treated as one long sentence and the credit shared between them should be applied only once. When the sentences are allowed to run concurrently, the shared credit gets applied to each of them.

Going back to the original prompt, what happens when the convictions are not sentenced at the same time, and the first one is finished before the second even has a chance to begin? Should they be considered “consecutive” sentences at that point because they missed any opportunity to overlap? And if so, is the court sentencing the second conviction barred from applying any of the shared credit that was already applied to the first conviction?

I am not aware of an appellate case that answers the question. My thought is that G.S. 15-196.2 probably should only operate to bar application of the credit to the second case if the second judge affirmatively orders it to run at the expiration of the first. If the judgment is silent, I think the sentences should be treated as concurrent for purposes of applying G.S. 15-196.2, even though they will not actually overlap.

Why? Because the purpose of the “apply-the-credit-only-once” rule for consecutive sentences is to preserve a judge’s ability to impose a truly consecutive sentence. You apply the credit only to the first sentence because technically, the second sentence won’t start until the first one is done. If you also applied the shared pretrial confinement to the second sentence, you’d be allowing the pretrial component of the sentences to be served concurrently.

But if the second judge isn’t making that affirmative choice to run the second sentence at the expiration of the first, it seems to me that the shared pretrial credit should also apply to the second sentence—even if it isn’t imposed before the first one ends. Mere functional consecutiveness does not strike me as enough to override the background rule that silence in the second judgment results in a concurrent sentence. See G.S. 15A-1354(a) (“If not specified or not required by statute to run consecutively, sentences shall run concurrently.”). And it doesn’t make sense to me that sentences with an overlap of as little as one day would be concurrent enough to authorize dual crediting, while a gap between them of as little as one day would oblige the court to treat them as fully consecutive—including their shared pretrial component.

Some might say, never mind the details of G.S. 15-196.2, credit should not be applied to Sentence B simply because it has already been applied to and cashed out against Sentence A. For reasons I initially discussed here, and especially after the statutory amendments from 2015 discussed here, I disagree with any notion that shared credit should not be applied to a later-imposed sentence because it was “used up” when it was applied to the first sentence. Whether the shared credit applies to one or both sentences depends on whether a judge runs them consecutively or concurrently, not on which one happens to be entered first.

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