North Carolina’s prisons are crowded now, but they were really crowded in the early 1990s. To keep the system functioning, the state ramped up the rules for sentence reduction credit and parole eligibility considerably—to an extent that the average felon was serving less than 20 percent of his or her actual sentence. For some offenders that truncated prison term looked better than a lengthy term of probation, so they either refused probation altogether or got revoked on purpose.
The General Assembly enacted G.S. 15A-1331A in 1994 to create a disincentive to choosing prison over probation. Under that law, a person convicted of a felony forfeits all licensing privileges if he or she “refuses probation” or has probation revoked for failing, in the revoking court’s estimation, “to make reasonable efforts to comply with the conditions of probation.” The forfeiture covers driver’s licenses (regular and commercial), occupational licenses, and hunting and fishing licenses, and lasts “for the full term of the period the individual is placed on probation by the sentencing court at the time of conviction for the offense.” Judges can use Side Two of AOC-CR-317 to order the forfeiture (Side One is for a driver’s license forfeiture for failure to complete community service).
A recent case from the court of appeals clarifies how long a license forfeiture lasts under G.S. 15A-1331A. In State v. Kerrin, the sentencing court originally placed the defendant on probation for 24 months when she was convicted of several crimes related to a shoplifting incident. About sixteen months later, after a positive drug screen and some other violations, the court revoked Kerrin’s probation. The court also ordered that her driver’s license be forfeited for 24 months, beginning on the date of the revocation hearing and ending two years later.
Kerrin appealed, arguing that the trial court erred by ordering a license forfeiture for a full 24 months when “the full term of the period [she was] placed on probation by the sentencing court” would have expired about eight months after the order was entered. The state countered that G.S. 15A-1331A triggers a forfeiture of as long as the original period of probation, and that the clock doesn’t start ticking on that forfeiture period until the court orders it (here, at the point of revocation).
The court of appeals agreed with the defendant and reversed the forfeiture. The court deemed the language in G.S. 15A-1331A referencing the probation term set by the “sentencing court at the time of the conviction” to be “simply too specific to support the State’s proposed interpretation.” The court held that the end date of the forfeiture period could be no later than the date the original period of probation would have expired—that is, 24 months measured from the date of sentencing, not from the date of the revocation.
So, when a court orders a forfeiture under G.S. 15A-1331A(b)(2), the beginning date of the forfeiture will be the date entered on the AOC-CR-317 (typically the date of the probation revocation hearing). The end date will be the date the original period of probation ordered by the sentencing court would have expired—a date that remains the same regardless of whether probation gets extended (or, it seems to me, tolled) at some point along the way.
On a related note, the forfeiture provision in G.S. 15A-1331A apparently wasn’t enough to stem the tide of felons foregoing probation in favor of prison in the mid-1990s. As I wrote about here, the law allowing defendants to elect to serve a sentence (G.S. 15A-1341(c)) was repealed in 1995, effective for offenses committed on or after January 1, 1997. So, the first prong of G.S. 15A-1331A(b)—the part referencing individuals who refuse probation—shouldn’t come into play anymore.
Thanks, Jeff. That provision on the plea transcript has never been clear to me. This helps and I’ll be able to better explain it to my clients. Perhaps an amendment to the statute to delete 15A-1331A(b) can be proposed if the right moment arises, and maybe someone on the forms committee could suggest taking that particular language about refusing probation off of the plea transcripts.
I, like Kerry, have always wondered just what that meant on the the plea transcript. I read State vs. Kerrin and if AOC indeeds takes their advise and makes alterations to AOC CR 317, we should be careful that it doesn’t read so that the Judge puts the beginning date for the revocation the original judgment date. If they did this, DMV with make the revocation retroactive and if the Defendant had a moving violation while he/she were revoked, they will get a one year suspension for each moving violation. I know this thought may be paranoia on my part but we did have a judge who didn’t understand the black letter of the statute in the Kerrin case and we had a State representative who made the argument originally.
Love this service you are providing, Jeff. Thanks. Hey, I am looking for Volume 2 of North Carolina trial judges’ bench book for District Court. Know where I can get a copy? I know it is being “updated” though that status has been going on for quite some time.
Thanks…