Knowing when probation begins is generally pretty easy. Figuring out when it ends can be a little trickier.
I wrote about when probation begins here. The TLDR version is this: generally, probation begins on the day it is imposed and, by default, runs concurrently with any other period of probation, parole, or imprisonment to which the defendant might also be subject. G.S. 15A-1346(a). A judge can run a probation period consecutive to an undischarged term of imprisonment, G.S. 15A-1346(b), and when he or she does that, the probation period does not begin until the person is released from jail or prison in the previous case. (I discussed contingent sentences in the post linked above and here.)
But when does probation end? Probation periods are generally ordered in months, and so the answer would seem to be that probation ends the stated number of months after it begins. The rule of thumb I hear most of the time goes something like this: if probation is imposed on a particular date in a particular month, then it will end one day before that date of the calendar month that is the appropriate number of months into the future. For example, if the court imposes a 12-month probation period on January 10, 2018, most people would (I think) say it ends on January 9, 2019. Some might say it ends on January 10, 2019.
The appellate courts have never really weighed in on the question directly. And they’re not always consistent when discussing the issue in passing. In State v. Gorman, 221 N.C. App. 330 (2012), for example, the court described a 60-month probation period as running “from 3 June 2005 to 2 June 2010,” while State v. Satanek, 190 N.C. App. 653 (2008), discussed a 36-month period imposed “on 1 February 2001 . . . ending on 1 February 2004.”
So when is the real last day? In the absence of clear guidance from the General Statutes or the courts, let me tell you how Community Corrections sees it. Or—perhaps more importantly—how their computer system (OPUS) sees it. What I learned, sitting at a computer terminal at DAC, is that neither of the views described above aligns with their calculator.
OPUS is programmed to view individual months of supervision as 30-day months. For example, a 6-month probation period would translate to 180 days. And so a 6-month probation period entered January 10, 2018, will generate a Scheduled Termination Date (STD in the lingo, apparently) of July 9, 2018—not because that is one day before the same date of the appropriate calendar month, but because that is the date of sentencing plus 180 days.
But is the STD the last day of probation? No. The last day of actual probation supervision is July 8, 2018. Probation officers are trained that the STD is the day the case is closed out. Actual supervision ends at 11:59 p.m. on the day before the STD, which is the 180th day of supervision (counting the day of sentencing as the first day, which is what G.S. 15A-1346(a) tells us to do). In fact, OPUS will not let an officer create a violation report on the STD itself.
Of course, most probation periods aren’t as short as six months. The averages are 16 and 26 months, for misdemeanors and felonies, respectively. And a funny thing happens when probation periods exceed 12 months. OPUS is programmed to bundle each 12-month chunk of a probation period and treat it as a 365-day year. If that rings a bell, it may be because that’s the same way DAC administers terms of imprisonment, as I described here. Ostensibly under G.S. 12-3(3), 12-month increments are bundled and counted as 365 days, with remainder months treated as 30 days apiece, regardless of which calendar month they happen to be. The court of appeals upheld that practice as applied to months of imprisonment in McDonald v. N.C. Department of Correction, 219 N.C. App. 536 (2012).
It’s not a given that OPUS would treat probation periods the same way, but it apparently does. Here are a few more examples that help flesh out the rule, straight from the DAC mainframe—which, incidentally, is the same one Matthew Broderick tapped into in War Games.
A 24-month period with the sentence beginning (SNT. BEGIN) on 1/10/2018 will have a scheduled termination date of 1/10/2020, which means probation supervision actually ends at midnight on 1/9/2020. That’s two 365-day chunks, one for each 12-month year.
If you said a judge was going to extend that period of probation by six months, I think many people would tell you the extended period would end on 7/9/2020. It does not. OPUS will treat each of the additional six months as 30 days, adding 180 days to the original STD. That generates a new STD of 7/8/2020, which means last day of supervision of the extended period is 7/7/2020.
Watch what happens if the court extends our original 24-month period to 36 months. You might think OPUS would spit out a new STD of 1/10/2021, but it doesn’t.
As you can see, it’s 1/9/2021. It took me a minute to figure out why, but I got it. It’s not that those last 12 months are counted differently than the first two 12-month chunks. To the contrary, it’s that OPUS treated them all the same: 12-month bundles are always converted to 365 days, even if one of them happens to span a leap year. 2020 will have 366 days, and so an STD increased by a mere 365 days falls back by one calendar day to January 9. The last day of supervision would be 1/8/2021.
DAC’s interpretation can lead to unexpected results, especially if you monkey around with February. For instance, an 18-month term of probation imposed on 8/31/2017 will generate an STD of 2/27/2019. That’s a 12-month “year” carrying you to 8/31/2018, plus 180 days for each of the six remaining 30-day months.
By contrast, a 13-month period (strange, I’ll admit, but it helps tease out the rule) imposed on 1/31/2018 will generate an STD of 3/2/2019. That’s a 12-month chunk plus one 30-day remainder month.
Arguably, neither example follows the statute around which the calculator is purportedly built, G.S. 12-3(3). That law says that a “month” should be treated as a calendar month, and when there’s a period where the “last month does not have a date corresponding to the initial date, the period shall expire on the last day of the last month.” That would suggest that the probation period in both examples—initiated on the last day of a month with 31 days—should end on the last day of the last month: February 28. But that’s not the result in either case. And you can see how the calculator’s actual rule works in the probationer’s favor in the first example, but to his or her disadvantage in the second.
Is all of this an academic concern? Perhaps. In most cases a day or two in either direction probably wouldn’t matter. But if you’ve got a case where a violation report was filed just under the wire, or an extension was entered at the last minute, it may be worth looking back to see when the case actually began. At a minimum, you should know that the common courtroom shorthand for determining when probation ends is an oversimplification that won’t always match what a probationer hears from his or her probation officer.
Am I saying that I think DAC’s computers aren’t programmed correctly? No. In fact, I think it’s reasonable for DAC to assume that the McDonald rule would be affirmed in a probation period case just as it was for terms of imprisonment. But my point is that it’s an open question, and something that could make all the difference in the right case. After all, a violation report filed at the last minute is valid and actionable under G.S. 15A-1344(f). A violation report filed a day after the actual last minute is really no violation report at all.