“Using Up” Jail Credit

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Suppose a person is held in jail for 20 days on two pending misdemeanor charges, Charge A and Charge B. For one reason or another, Charge A results in a conviction first and is sentenced to 100 days. Ten days later, the defendant is convicted of Charge B and also sentenced to 100 days on it. If the first judge applied 20 days of jail credit to Charge A, how much credit may be applied to Charge B?

If Charge B is set to run consecutively to Charge A, the answer is easy: no pretrial jail credit should be applied to Charge B. That’s not because Charge A was sentenced earlier, but rather because of the general rule for applying shared jail credit to consecutive sentences. When a person is confined on multiple charges and eventually sentenced consecutively, the resultant sentences are considered as one sentence for the purpose of applying credit. G.S. 15-196.2. The shared credit time is not multiplied by the number of consecutive offenses for which the defendant is imprisoned, and so the 20 days applied to Charge A are not also applied to Charge B. There is no credit against Charge B for the 10 days after the sentencing of Charge A; once a person is serving one sentence, he or she does not accrue credit toward any still-pending charge. G.S. 15-196.1 (“[T]he credit available herein shall not include any time that is credited on the term of a previously imposed sentence to which a defendant is subject.”).

If Charge B is set to run concurrently with Charge A—which, under G.S. 15A-1354(a), is what will happen by default if the judgment is silent on the issue—I think the answer regarding the 20 days of shared credit is less clear. Ordinarily, when a defendant is confined on multiple charges that result in concurrent sentences, each sentence “shall be credited with so much of the time as was spent in custody” on each of them. G.S. 15-196.2. If the sentences were imposed at the same time, there would be no question that both would get 20 days of jail credit.

Is the same true when Charge B is sentenced after Charge A? People disagree, with the sticking point being the last clause of G.S. 15-196.1. That’s the provision I cited above for the rule that the defendant does not accrue jail credit for one charge when he or she is already serving a sentence for another charge—i.e., a “previously imposed sentence to which [the] defendant is subject.”

Some read that provision to say that no credit should be applied to Charge B because the 20 days of shared credit were “used up” by Charge A. They view Charge A as a “previously imposed sentence” under the last clause of G.S. 15-196.1, and conclude that once the 20 days of credit have been applied to Charge A, they cannot also be applied to Charge B. Others think the credit can be awarded under the general rule for applying shared credit to concurrent sentences in G.S. 15-196.2. They read “previously imposed sentence” in last clause of G.S. 15-196.1 to refer to a sentence to which the defendant “is subject” prior to the accrual of credit on the case now being sentenced, not merely prior to its sentencing. Read that way, the clause blocks only the award of the 10 days of confinement between the sentencing of Charge A and Charge B, because at that point Charge A is unquestionably a “previously imposed sentence” to which the defendant is subject during his continued pretrial confinement on Charge B. The credit accrued on Charge B before Charge A was sentenced survives and can be awarded under G.S. 15-196.2.

I don’t think there’s a case that clearly resolves the issue. And even if the legal interpretation were clear, there are often practical barriers to knowing precisely when various charges were pending and what credit has already been applied—especially when multiple counties, multiple judges, and multiple jails are involved. Nevertheless, I write to ask if you have encountered this issue in your work, and if there is a prevailing interpretation in your neck of the woods.

6 comments on ““Using Up” Jail Credit

  1. Don’t forget that 10 days is also the magic number for Notice of Appeal. You can appeal A on the 10th day, use the credit for B and later remand (or withdraw the appeal later the same day).

  2. I literally JUST asked that question today of our clerk’s office and was told that credit is given toward the first case to pled, and that credit is “used up” as to any other cases not pled on the same day. In this case, the defendant had unrelated felonies and misdemeanors, but was concurrently incarcerated on all of them.

  3. I’ve encountered the issue, and when I’ve run into it (Durham County), I’ve always argued that it would only block those 10 days when the sentence for A was actually being served, and the 20 days applies to both (when the sentences are concurrent). I’ve never had a judge balk at that.

  4. As a point of clarity, the 10 days between sentencing in sentence A and B is never in play for credit. The reason being, an individual does not earn jail credit while serving an active sentence.

  5. In Forsyth County, judges ordinarily upon request note that the defendant should get all the credit that he or she is due, practically leaving up to the sheriff or DAC to make the actual calculation of credit. I typically try to get my client’s to obtain all their sentencing in one week (for points purposes at the very least) but also try to get everything done on one day credit purposes. Otherwise, I tell them, that their first charge will “burn” all their jail credit and it won’t be available for any subsequent charge they may plea out/ be sentenced on. Indeed, I have found some resistance from DA’s when attempting to put all matters for plea on one day/courtroom, in that they may be trying to prevent the “windfall benefit” to my clients.

  6. […] applicable to one sentence is “used up” when it is applied to another. In my view (expressed here back in 2013) that has always been the law, but I think it’s even clearer after the 2015 […]

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