Stay of Probation upon Appeal

When a person is convicted and sentenced, the sentence generally starts right away. G.S. 15A-1353(a). The judge can delay the start of the sentence, as discussed in this prior post, but that is the exception to the rule. About the only other thing that can put the brakes on the start of a sentence is an appeal. Today’s post discusses the rules for staying probation (including special probation) upon appeal.

When a defendant appeals a misdemeanor conviction in district court, all portions of the district court judgment are stayed under G.S. 15A-1431(f1). The stay includes any active punishment imposed and any probation or special probation. That is in line with the general principle that an appeal from district court wipes the slate clean pending trial de novo in superior court. Julie Ramseur Lewis & John Rubin, North Carolina Defender Manual (Vol. 2, Trial), at 341.

For defendants sentenced to probation, a probation officer will track the progress of the appeal during the stay, but the officer should not be supervising the defendant. (Probation policy, §D.0409, notes that distinction.) The defendant is not on probation at that time, and thus not subject to supervision fees or any other condition of supervision. The defendant may, however, be subject to conditions of pretrial release during the pendency of the appeal. G.S. 7A-290; 15A-1431(e). If the appeal is withdrawn and the case is remanded, probation will begin when the case arrives back in district court for execution of the original judgment (or, in the case of an implied consent offense, upon resentencing as required by G.S. 20-38.7). State v. Smith, 359 N.C. 618 (2005).

Occasionally a defendant will manage to violate probation during the first few days of his or her district court probation, before the time for appealing the case to superior court (ten days) has expired. If the defendant appeals, the probation will at that point be stayed. If the defendant proceeds with the trial de novo and receives a sentence in superior court, I think those quickly-obtained district court violations disappear under the clean slate theory noted above.

Appeals of superior court convictions (and Class H and I felonies pled in district court) are governed by a different statute, but the general rule for stays is similar—at least as far as probation is concerned. Notice of appeal of a superior court conviction stays probation, including special probation. G.S. 15A-1451(a)(4). Based on questions I have received, the automatic stay of superior court split sentences sometimes catches people off guard. That’s probably because other confinement ordered in superior court is stayed only when the judge imposes release conditions under G.S. 15A-536. G.S. 15A-1451(a)(3). It does not follow, however, that the court may impose conditions of release only upon appeal of an active sentence. To the contrary, G.S. 15A-536 empowers the trial judge to impose release conditions during the appeal of a stayed probationary sentence—including conditions that may be very similar to the stayed probation itself. See State v. Howell, 166 N.C. App. 751 (2004) (affirming the trial judge’s imposition of a release condition barring computer use while a similar probation condition was stayed on appeal). As with appeals from district court, a probation officer should not supervise the defendant during the pendency of an appeal to the appellate division.