Hip Pocket Jail Time for Probationers

The rules for sentencing a defendant to special probation—a split sentence—are set out in G.S. 15A-1351(a). Under that law, the court can order as part of a probationary sentence that the defendant serve a period of imprisonment not exceeding one-fourth the maximum suspended sentence imposed (or, in impaired driving cases, one-fourth of the maximum penalty allowed by law). Periods of special probation confinement can be for a continuous period or for noncontinous periods. If for noncontinuous periods, the time behind bars must be in a jail or treatment facility (not DOC), and it must be completed within two years of conviction (so the judge could not, for example, order someone to serve weekends in jail for five years). Periods of imprisonment ordered under G.S. 15A-1351(a) are to be served “at whatever time or intervals . . . the court determines.” G.S. 15A-1344(e) sets out essentially the same rules for special probation ordered as a modification of probation in response to a violation. I am sometimes asked just how explicit a judge needs to be when determining the “time or intervals” at which special probation confinement will be served. Form AOC-CR-603, Page Two, Side One, gives the court the option of imposing a specific day, date, and hour for the defendant to report to the jail, perhaps to be repeated at intervals for a designated term of consecutive weeks. The form also allows the court to order that the “sentence shall be served at the direction of the probation officer” within a [...]