After Alyson’s post from yesterday, I thought it might be a good time to recap some of the other sentence credit issues our courts have addressed over the years. These decisions are grounded in G.S. 15-196.1, which requires credit for the “total amount of time a defendant has spent, committed to or in confinement in any State or local correctional, mental or other institution as a result of the charge that culminated in the sentence.” The statute expressly includes time spent in custody pending “trial, trial de novo, appeal, retrial, or pending parole and probation revocation hearing.” Here are some other things the courts have told us count for credit:
* Presentence commitment for study. State v. Powell, 11 N.C. App. 194 (1971)
* Hospitalization to determine competency to stand trial. State v. Lewis, 18 N.C. App. 681 (1973)
* A federal court interpreted G.S. 15-196.1 to include time spent in confinement in another state awaiting extradition. Childers v. Laws, 558 F. Supp. 1284 (W.D.N.C. 1983)
* The active portion of a split sentence. State v. Farris, 336 N.C. 553 (1994)
* Time spent in the now-defunct IMPACT boot camp program. State v. Hearst, 356 N.C. 132 (2002)
* Time spent at DART-Cherry as a condition of probation. State v. Lutz, 177 N.C. App. 140 (2006)
* Time spent imprisoned for contempt under G.S. 15A-1344(e1). State v. Belcher, 173 N.C. App. 620 (2005)
* Credit should NOT be awarded for time spent under electronic house arrest. State v. Jarman, 140 N.C. App. 198 (2000)
The Belcher decision, granting credit for time spent jailed for criminal contempt under G.S. 15A-1344(e1), raises a question for me. In my mind, contempt for probation violations (added to the law in 1994) was intended to serve at least two purposes. First, it allows the judge to order some jail time in response to a violation without having to resort to the nuclear option of revocation. (But a judge could always do that by ordering special probation in response to a violation.) Second, it gives the judge some leverage over the probationer with a very short suspended sentence who might not be super-motivated to comply with his or her conditions of probation. Giving credit for contempt time seems incompatible with this second purpose. Taking the rule to its logical conclusion, I wonder: can a judge—knowing that contempt time counts for credit against a suspended sentence—order 30 days for contempt (the maximum allowed under Chapter 5A) for a probationer with only 20 days suspended?
Speaking of credit, I got a request the other day to elaborate on the “good time” rules for DWI sentences. G.S. 148-13(b) specifically authorizes the Secretary of Correction to issue regulations on sentence reductions for impaired driving offenders. The Secretary has done that in the Division of Prisons sentence reduction credit policy (thank you, DOC, for sharing that and letting me post it). As you can see on pages 1 and 2, good time credit—awarded at the rate of one day of credit for each day served in custody without an infraction—is available to DWI inmates, regardless of their offense date. The rule’s reach extends beyond the prisons; under G.S. 148-13(e), jail administrators are required to follow it. The only limit on the rule is G.S. 20-179(p)(2), which says good time credit may not reduce the mandatory minimum period of imprisonment required by law for DWI.
Thank you!
This is terrific information — absolutely no interest is served by forcing a criminal defendant to serve more time in prison or jail than required by their sentence.
I think the opinion is wrong in Belcher. Plenary contempt is a complete and separate charge with its own sentence; the legislature added the (e1) option in probation violations for a reason, and Belcher undermines what the legislature was trying to do in giving judges a fuller range of options. It was wrong for the AGs office to lay down and concede the issue in Belcher.
Contempt has to be proven “beyond a reasonable doubt”, and is effectively a trial (with all its limitations on hearsay). Thus the ONLY reason to pursue the (e1) contempt option is to get that additional 30 days, since it would be far easier to prove a probation violation to the “reasonable satisfaction” of the court and ask the court to impose an acitve split of 30 days; under the result, there would never be a reason to pursue contempt because it would be far easier to prove the violation.
Belcher leads to this situation – judge sentences a felony defendant in a C/I block to a suspended sentence. Defendant has already exceeded the maximum end of the sentence with pretrial credit and wants to activate, but the judge agreeing the prosecutor that the Defendant has no right to do that, orders him processed by probation. Defendant immediatley violates and is charged with contempt; he then spends say, a week in jail. At the hearing, the judge finds him in contempt and sentences him to 30 days in jail. Since under Belcher, he must be credited with time served against the 30 days, he is immediately released, but is back on probation!
Or what about this- Defendant is charged with plenary contempt during his trial; the Defendant is found not guilty of the substantive charges being tried, but guilty of the plenary contempt in a hearing after the trial. Under Belcher, shouldn’t he get 30 days credit for his pretiral confinement against his 30 days on the contempt?
As to forcing more jail time for defendants owing money, that’s a pretty common practice in civil nonsupport cases; sentence them for contempt ’til they pay up and purge themselves, then put them out until the next time. In criminal cases, some defendants charged with felony larceny with high restitution amounts figure they’ll just spend the finite time in jail and avoid paying. . . . .
Does the language “…time spent as a result of (the pending charge)…” Mean is there is also ANOTHER reason that the defendant is confined that he does not get credit against time served for the pending charge? For example a defendant is arrested and does not bond out in county A and while awaiting trial gets arrested in County B for another charge which he also does not bond out on. He then pleads to the charge in County A and starts a DOC sentence and a month or two later while in th DOC pleads to the charge in County B. Does he get credit for time since day one the charge in County B or only until the DOC term starts. He is noy ONLY being confined as a result of the pending charge in my hypothetical. In our district, we hear that a defendant doesn’t get credit for each charge is confined for probation violations one more than one charge for which defendant is on probation, either… Please give some clarity as I try to understand this very important area of the law, and one my clients find VERY interesting to say the least…. Thanks…