Recently, I was teaching a class about the habitual felon laws when a participant asked a question that I had never considered. We know that a defendant convicted of drug trafficking may be convicted as a habitual felon, and when that happens, the defendant’s term of imprisonment is determined under Structured Sentencing based on the elevated offense class set forth in the habitual felon statutes, not based on the mandatory term of imprisonment set forth in the trafficking statute. But what about the mandatory minimum fine listed in the trafficking statute? Must that be imposed, or is the defendant “habitualized out” of all the sentencing-related provisions of the trafficking laws? Apparently, this issue comes up regularly in practice. Continue reading
Tag Archives: Sentencing
The North Carolina Sentencing and Policy Advisory Commission has just published its annual Structured Sentencing Statistical Report for Felonies and Misdemeanors. Today’s post covers some highlights from the report. Continue reading →
In a previous post I wrote about State v. McNeil, a case that resolved the question of how to count prior convictions for possession of drug paraphernalia, in light of that crime’s 2014 division into Class 1 (non-marijuana) and Class 3 (marijuana) offenses. Today’s post is about prior convictions for second-degree murder—split into Class B1 and Class B2 varieties in 2012—in light of State v. Arrington, a case recently decided by the supreme court. Continue reading →
Earlier this week, the students and I spent the afternoon at Central Criminal Court in London, formerly called the Old Bailey and located at the intersection of Old Bailey and Newgate streets in the heart of London’s law district. I can guarantee that this post will not be as captivating as Rumpole of the Bailey, the British television series about fictional barrister Horace Rumpole. But, like most trips to court, it was certainly interesting. Continue reading →
The School of Government is a nonpartisan, non-advocacy institution. That’s a tradition I take seriously. If you can find something in the nearly 400 blog posts I’ve written here since 2009 that makes you think otherwise, I hope you’ll let me know.
That said, I am occasionally asked what I would do if someone gave me a magic wand and told me to make our sentencing law better. “Better” can be a tough concept to navigate while staying true to the School’s policy-neutral underpinnings. But I don’t mind sharing a few ideas focused on the mechanics of the sentencing law—largely as a thought experiment designed to call attention to some of the more confusing aspects of existing law. Continue reading →
Sometimes there is a delay between when the court pronounces a sentence and when the judgment is actually signed. When that happens, questions can arise about when the sentence begins. Is it when the judge says it, or when he or she signs it?
Under G.S. 15A-101(4a), in criminal matters, “[j]udgment is entered when sentence is pronounced.” That is different from civil matters, where Rule 58 says “a judgment is entered when it is reduced to writing, signed by the judge, and filed with the clerk of court.” So, aside from delayed active sentences (allowed under G.S. 15A-1353(a), as described here), sentences set to run at the expiration of other sentences, or contingent probation cases (allowed under G.S. 15A-1346(b), as described here), a sentence begins when the judge says it, not when the judgment is signed. State v. Trent, 359 N.C. 583 (2005).
Probationary sentences raise some special concerns. Anecdotally, I hear that it can sometimes take weeks to get a signed probation judgment in some parts of the state. Nevertheless, under G.S. 15A-101(4a) and G.S. 15A-1346(a) (“a period of probation commences on the day it is imposed”), the person is on probation from the moment the court says so in open court. That means time starts ticking toward expiration on that day, not on the day the order is signed. The difference between those dates will sometimes matter at the end of a case, where a court will only have jurisdiction under G.S. 15A-1344(f) if a violation was filed (and stamped) before expiration. So watch out for that.
The delay in getting a signed judgment can cause issues on the front end of a probation case, too. Even though the person technically is under supervision from the time of the court’s oral pronouncement, under G.S. 15A-1343(c), a defendant “must be given a written statement explicitly setting forth the conditions on which he is being released.” In general, a condition is not enforceable until a defendant receives it in writing. See State v. Seek, 152 (2002). Cf. State v. Brown, 222 N.C. App. 738 (2012) (setting forth a limited exception to condition-in-writing rule for the baseline condition that a person report to his or her probation officer in the first place). And so if a violation were to arise shortly after a person was placed on probation and before the judgment was reduced to writing and provided to the defendant, he or she would have a good defense to it. (Probation staff may ameliorate that concern to some extent; their standard practice is to give the defendant a copy of at least the standard conditions of probation before he or she leaves court on the day of sentencing, even if the signed judgment isn’t yet ready.)
Incidentally, the delay between issuance of sentence and receipt of a written judgment really shouldn’t be very long. By statute, when a superior court judge sentences a person to imprisonment, the clerk shall provide the sheriff with a signed order of commitment within 72 hours of the issuance of the sentence. When a district court judge does it, the commitment must be furnished to the sheriff within 48 hours. G.S. 7A-109.3. It’s good for the sheriff and county when that happens promptly, because the person can be moved more quickly from the jail to prison.
If there is any delay in that transfer after the judgment is received, under G.S. 148-29, “[b]eginning on the day after [DAC] has been notified by the sheriff that a prisoner is ready for transfer . . . and continuing through the day the prisoner is received by [DAC],” the state pays the county $40 per day plus the costs of extraordinary medical expenses—the so-called jail backlog fee. Before 1999, the fee began accruing on the sixth day after sentencing, but the law was amended that year to say it would begin accruing the day after the sheriff told DAC to come get the inmate. S.L. 1999-237.