A UNC School of Government Blog
The court of appeals issued its decision yesterday in a case called State v. Miller. It answers a question I get asked a lot: Can an active sentence be served in noncontinous periods? The answer: No, it can’t—at least not as a true active sentence. In Miller, the defendant received a 30-day suspended sentence in … Read more
Some crimes have their own sentencing regime—impaired driving, drug trafficking, and first-degree murder to name a few. There are also crimes that fall under Structured Sentencing but that also have additional punishment provisions built in. One such crime is concealment of merchandise in mercantile establishments, better known as shoplifting. Under G.S. 14-72.1(e), the punishment for … Read more
Defendants often stipulate to prior convictions for the purpose of establishing their prior record level. Form AOC-CR-600, the prior record level/prior conviction level worksheet, includes a section (Section III, at the top of Side Two) to note that that stipulation. The court of appeals said in State v. Hussey, __ N.C. App. __ (2008), that … Read more
I wrote here about grossly aggravating factors (GAFs) and Level One and Two punishment in impaired driving cases sentenced under G.S. 20-179, leaving discussion of Level Three, Four, and Five punishment for another day. That day is upon us. If the judge or jury in the sentencing hearing determine that there are no GAFs, the … Read more
A while ago, Alyson Grine and I wrote a post about consecutive sentences for misdemeanors. In it, we discussed the rule that when a court elects to impose consecutive sentences for two or more misdemeanors, the cumulative length of the sentences of imprisonment may not exceed twice the maximum sentence authorized for the class and … Read more
I first encountered North Carolina’s impaired driving sentencing scheme several years ago when I worked as an Assistant Federal Public Defender for the Eastern District of North Carolina. I represented defendants charged under the Assimilative Crimes Act, 18 U.S.C. § 13, with committing violations of assimilated state offenses on a certain federal enclave in Fayetteville. … Read more
Suppose a defendant is convicted of a crime and the judge wants to (or, in a “C” or “C/I” cell in the sentencing grid, has to) suspend the sentence. Can the defendant refuse probation and elect to serve the sentence? Unless the defendant’s crime was committed prior to January 1, 1997, the answer is no. … Read more
After my earlier post about nonstatutory aggravating factors, a reader took me up on my offer to write about nonstatutory mitigating factors. In addition to the twenty mitigating factors spelled out in G.S. 15A-1340.16(e), the law allows for “any other mitigating factor reasonably related to the purposes of sentences.” Procedurally, nonstatutory mitigating factors are a … Read more
By special request, this post recaps the law of nonstatutory aggravating factors. Under G.S. 15A-1340.16(d), the State may, in addition to the 25 statutory aggravating factors set out in that subsection, attempt to prove “any other aggravating factor reasonably related to the purposes of sentencing.” There’s no universal agreement on the “purposes of sentencing,” but … Read more
Jeff Welty blogged here and Jessica Smith published a paper here about the implications of the Supreme Court’s holding in Melendez-Diaz that forensic laboratory reports are testimonial, rendering the affiants witnesses who are subject to the defendant’s right of confrontation under the Sixth Amendment. I’ve been pondering the impact of the court’s holding on the … Read more