Electing to Serve a Sentence

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. The law that used to allow a probationer to elect to serve a sentence, G.S. 15A-1341(c), was repealed in 1995. S.L. 1995-429. The repeal was motivated in part by the fact that many pre-Structured Sentencing probationers were refusing or purposely violating their probation, knowing they would serve only ten to twenty percent of their active sentences under the emergency prison population control measures in effect at the time. Better, the thinking went, to knock out a shortened active sentence than to put up with years of probation supervision. There were some who worried that the repeal of the elect-to-serve provision would cast doubt on the constitutionality of suspended sentences. At that time, probation was not included in the list of authorized punishments set out in Article XI, Section 1 of the state constitution, and so its validity arguably hinged on the defendant's consent. With the elect-to-serve provision repealed, a defendant could no longer be said to have consented to his or her probation. To be safe, then, the repeal was accompanied by a state constitutional amendment, adding probation to the list of authorized punishments. Consent no longer required, problem solved. (This change in the law becomes [...]