The End of the Super-Contingent Sentence

Under G.S. 15A-1346(b), a sentencing court has the authority to order a probationary sentence to run consecutively to an undischarged term of imprisonment. Probation officers refer to that as a “contingent” sentence, because for them, it is—the start of the probation is contingent on the person’s release from prison. A contingent probationary sentence can be helpful when, for example, a defendant owes a lot of restitution, and the court wants to make sure there’s plenty of time on probation remaining after the defendant finishes any active sentences. To be clear, this is not a matter of whether the suspended term of imprisonment, if revoked, will run concurrently with or consecutively to some other term of imprisonment. This is about when the period of probation itself begins. A recent Court of Appeals decision changes things. There are two check-boxes on every suspended judgment form (AOC-CR-603E, for example) related to this authority. In the SUSPENSION OF SENTENCE portion of the form, item 3 states This period of probation shall begin  □ when the defendant is released from incarceration   □ at the expiration of the sentence   in the case below. If neither option is selected, then by default the probationary sentence begins the day it is imposed, even if the defendant will be in prison serving some other sentence. G.S. 15A-1346(b). The first option is understood to mean that the probation sentence will begin immediately upon the person’s release from prison, even if they will also be on post-release supervision at that point. (The [...]