G.S. 90-96(a) Is Mandatory Unless both the Judge and the State Say No

I wrote a post in July asking whether conditional discharge under G.S. 90-96(a) is discretionary or mandatory for a consenting defendant. A case decided this week offers some clarification. The prior post, here, walked through the recent legislative history of G.S. 90-96(a). Long story short: whether or not to grant a conditional discharge for an eligible defendant used to be within the discretion of the trial judge. In 2011, as part of the Justice Reinvestment Act, the law was made mandatory for consenting defendants. The law was revised again in 2013, ostensibly—according to the language of the bill title—to “provide that a court has the discretion to determine whether to grant a conditional discharge.” S.L. 2013-210. But the revised law does not say that exactly. Instead, it says that conditional discharge is mandatory “unless the court determines with a written finding, and with the agreement of the District Attorney, that the offender is inappropriate for a conditional discharge for factors related to the offense.” G.S. 90-96(a). So, the question is, is whether or not to grant a conditional discharge under G.S. 90-96(a) really within the discretion of the trial judge? State v. Dail, decided by the court of appeals on Tuesday, put the revised statute to the test. In Dail, the defendant pled guilty to possession of LSD in November 2015 for an offense committed in April 2015. (So, to be clear, the defendant was covered under the most recent version of G.S. 90-96 described above.) When the plea was entered, [...]