A judge can order special probation (a split sentence) at sentencing or in response to a violation of probation. If a judge does both, what is the maximum amount of time the defendant may be incarcerated?
Splits imposed at sentencing are governed by G.S. 15A-1351(a). For crimes sentenced under Structured Sentencing (essentially any felony or misdemeanor aside from DWI), that statute says that the total of all periods of confinement imposed as an incident of special probation may not exceed one-fourth the maximum sentence of imprisonment imposed for the offense. (So, for a defendant with a 9–20 month suspended sentence, the maximum permissible split sentence is 5 months.) For impaired driving sentences, the total split confinement may not exceed one-fourth the maximum penalty allowed by law for that level of DWI. (Thus, for an Aggravated Level One DWI, for which the maximum allowable penalty is 36 months, the maximum permissible split is 9 months, regardless of the length of the defendant’s actual suspended sentence.)
Splits imposed in response to a violation of probation are governed by G.S. 15A-1344(e). That subsection essentially repeats G.S. 15A-1351(a). For crimes sentenced under Structured Sentencing, the law says the total of all periods of confinement imposed as an incident of special probation may not exceed one-fourth the maximum sentence of imprisonment imposed for the offense. For impaired driving sentences, the split ordered in response to a violation may not exceed one-fourth the maximum penalty allowed by law for that level of DWI.
The question that comes up from time to time is whether split time ordered at sentencing counts against the time that may later be added in response to a violation of probation.
It appears to me that it does. In my view, the defendant’s total split exposure is one-fourth of the maximum imposed sentence (or one-fourth the maximum allowable sentence in the case of a DWI). It is not one-half of that maximum—which is what it would be if the judge could impose one-fourth at sentencing and another one-fourth at a probation violation hearing. Both statutory subsections refer to “the total of all periods of confinement imposed as an incident of special probation” when establishing the limit, indicating to me that all split sentence days count toward a cumulative total, regardless of when they are imposed.
No published case addresses the question, but an unpublished case does. In State v. Younts, 794 S.E.2d 923 (2016) (unpublished), the defendant received a sentence of 17–30 months, suspended, with a 4-month split sentence imposed at sentencing. About two years later the defendant violated probation and the court imposed a 6-month split in the same case. The defendant appealed, arguing that 10 months of total split time was too long for a 30-month maximum sentence, one-fourth of which would be 7.5 months.
The State conceded the error and the court of appeals remanded the case for correction. Easy enough.
Based on the language of the governing statutes and the logic and conclusion in Younts, it seems pretty clear to me that the one-fourth limit for split sentence confinement covers all split sentence days. With that in mind, judges thinking about a long split might not want to max out a defendant’s split time at sentencing. Doing so would leave no split time in the one-fourth bank to respond to probation violations. The one-fourth limit does not apply to Confinement in Response to Violation (CRV), quick dips, or contempt, so those types of confinement would still be an option (depending on the type of case in question) regardless of how much split time the defendant has served. But splits are more flexible than CRV in terms of the violations for which they may be imposed, where they may be served, and the option to serve the time on weekends or other noncontinuous intervals. In light of that flexibility, the sentencing judge might want to consider holding some portion of the one-fourth split allocation in reserve.