Rollover Jail Credit

When a person has pretrial jail credit shared between multiple charges, and those charges result in consecutive sentences, the shared jail credit gets applied only once. Does it matter which individual sentence gets the credit?

Let’s start with a refresher on the general rule for jail credit for consecutive sentences. Suppose a person is arrested and held in jail on both Charge A and Charge B for 5 months. He is convicted and receives consecutive sentences: 10-21 months for Conviction A, followed by 10-21 months for Conviction B. Under G.S. 15-196.2, the 5 months of jail credit are applied to only one of the individual sentences, because “creditable time shall not be multiplied by the number of consecutive offenses for which a defendant is imprisoned.” Had the sentences been allowed to run concurrently, G.S. 15-196.2 would have required the court to apply all 5 months of the shared jail credit to both sentences.

Unfortunately, that’s the easy version of the rule. It’s not hard to come up with variations on the hypothetical where the pretrial credit for the two charges does not perfectly overlap. For instance, suppose the defendant is detained on Charge A for 2 months and released, then detained on Charge B for 2 months and released, and then later held on both charges together for 3 months. In that case the defendant would have been in custody for 5 months on each individual charge. But if the defendant receives consecutive sentences, the 3 months of shared credit can be applied to only one sentence. If we’re still talking about two 10-21 months sentences, Sentence A would be 10-21 months with 5 months of jail credit, followed by 10-21 months with 2 months of jail credit for Sentence B. As you can see, it’s important to distinguish the truly shared credit from the credit attributable to only one charge when applying G.S. 15-196.2. If you looked only at the total confinement in each case without considering the particular days of confinement, you would have under-credited Sentence B by two months.

That review of G.S. 15-196.2 is just background to set up the real question. For jail credit that is shared between multiple charges, does it matter to which sentence the credit is applied?

If the shared jail credit does not exceed the time the defendant must serve on the sentence to which it is assigned, then it generally doesn’t matter which one you assign it to. In the first example, where there were 5 months of neatly shared jail credit between Charges A and B, and both charges resulted in 10-21 month sentences that individually required imprisonment in excess of 5 months, the defendant will wind up serving the same amount of time regardless of which sentence gets the credit.

But what happens when a person with consecutive sentences has so much jail credit applied to an individual sentence that it exceeds the time he will actually serve on it? Suppose—returning to our initial example of back-to-back 10-21 month sentences—that the person is held for 15 months on both charges, and that all the credit is applied to Sentence A. What then?

The answer is that whatever jail credit remains when Sentence A expires will roll over to Sentence B. Unless Judgment A specifically says otherwise, the Division of Adult Correction will assume that the credit was also attributable to Charge B, but not actually applied to it because of G.S. 15-196.2.

So, if 15 months of jail credit were applied to Sentence A and none to Sentence B, things would go like this. Remember that from DAC’s point of view, these consecutive 10-21 month sentences are really two 10-12 month sentences with a 9-month period of post-release supervision at the end. (Read this post or watch this video if you need a refresher on that.) Therefore, Sentence A will expire immediately (the defendant has already served 12 months of it), with 3 months of jail credit to spare. DAC will roll those 3 months over to Sentence B, reducing it from 10-12 months down to 7-9. The defendant would be released to post-release supervision somewhere between 7 and 9 months of imprisonment, depending on how much Earned Time and Meritorious Time he is able to accrue.

Something to note about DAC’s approach to rollover credit is that it is one-way street. That is, surplus jail credit on Sentence A will automatically roll over to Sentence B. If, however, the judge had initially applied the credit to Sentence B—the later sentence in the consecutive string—the surplus credit would be lost. There may be some argument that under a purist view of the “single term”/”one sentence” theories of G.S. 15A-1354(b)(1) and G.S. 15-196.2, respectively, the shared credit should be fungible between the two sentences in either direction. But you should know as a practical matter that it is not. My understanding is that the credit will only carry forward, not backward.

Therefore, a good rule of thumb is to be sure that shared jail credit gets applied to the first sentence in a consecutive string and not the last. Otherwise, the credit could become less like rollover minutes in an old school cell phone plan and more like that flex spending account money you weren’t able to spend before the end of the year.