Time Served

Which of the following defendants may be sentenced to “time served” (choose all that apply)?

A. A felony defendant with 5 months of jail credit sentenced to 6–17 months.

B. A felony defendant with 7 months of jail credit sentenced to 6–17 months.

C. A felony defendant with 9 months of jail credit sentenced to 6–17 months.

D. A felony defendant with 18 months of jail credit sentenced to 6–17 months.

The defendants in answer choices A and B may not be sentenced to time served. For felonies, a defendant must have jail credit in excess of his or her maximum sentence to receive a sentence to time served. Service of the minimum sentence is not enough. Under Structured Sentencing, the minimum is merely a floor for sentence reduction by earned time credits. G.S. 15A-1340.13(d). The defendant in choice A hasn’t even served the minimum, and the defendant in choice B has served the minimum but not the maximum. Neither may be sentenced to time served.

Answer choice C is incorrect for the same reason as choices A and B (the defendant has not yet served his or her maximum), but there is a Justice Reinvestment wrinkle. The JRA added 9 months onto the maximum sentences for all Class F–I felonies committed on or after December 1, 2011. Under prior law, defendant C would have received a 6–8 month sentence (not 6–17 months), and 9 months of jail credit would have been enough for a sentence to time served. After the JRA, the same defendant cannot be sentenced to time served because 8 months remain on his or her inflated maximum term.

Defendant C is, however, within 9 months of the maximum sentence, and thus due for immediate release onto post-release supervision if he or she receives an active sentence. G.S. 15A-1368.2(a). By default the defendant would go to prison and then be processed for release, but it is possible to make arrangements for a direct release from the jail to post-release supervision by coordinating with Combined Records (919-716-3200) and the Post-Release Supervision and Parole Commission (919-716-3108). Note that it may take them a few days to review the file, set the conditions, and assign an officer to supervise the defendant.

Answer choice D is the only correct answer. Defendant D has jail credit in excess of the maximum imposed sentence and should therefore be sentenced to time served. In my opinion that is true even for defendants who fall in “C,” “I,” or “C/I” grid cells. There is no “active punishment exception” for felony sentencing as there is for misdemeanor sentencing under G.S. 15A-1340.20(c1), but if the defendant has credit in excess of the maximum, there is no sentence left to suspend. Of course, it may be relatively unusual for a low-level felon to have enough jail credit to exceed the elevated post-JRA maximum sentences.

As I have discussed previously (here), many defendants want to elect to serve their time so they can avoid supervised release. The requirement of PRS for active sentence for offenses committed on or after December 1, 2011 makes that more difficult. Unless a defendant has credit in excess of the maximum sentence (like defendant D), an active sentence will land him or her on post-release supervision (like defendant C)—which isn’t much different from the probation the defendant may have been seeking to avoid. The only way I can think of to avoid PRS is for the judge to give a probationary sentence (assuming the grid allows it) and then terminate that probation immediately pursuant to G.S. 15A-1342(b).

Time served sentences for misdemeanors are easier. First, misdemeanor sentences are for a discrete number of days, not a range of months; there is no ambiguity about how much time needs to be served before a defendant may be released. Moreover, because every grid cell on the misdemeanor grid allows for a sentence as short as one day, any defendant with even a day of jail credit can be sentenced to time served. That is true even for defendants in “C” and “C/I” grid cells thanks to the active punishment exception in G.S. 15A-1340.20(c1). Finally, misdemeanants don’t receive post-release supervision, so an active sentence is complete immediately upon the defendant’s release.

I’ll conclude with a word about the mechanics of imposing a sentence to time served. The court should not merely record the sentence on the judgment as “time served.” Instead, the better practice is to impose a sentence pursuant to the applicable grid cell and then award enough jail credit to offset it. Those numbers are important as a matter of accurate recordkeeping, and also for determining the full legal consequences of the sentence. For example, an accurate record of the number of days in pretrial confinement is needed to calculate the jail fees due the county under G.S. 7A-313.

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