Keeping a Person Under Supervision When There’s No Sentence Left to Suspend

When a person has so much jail credit that he has served his entire sentence of imprisonment, may he nonetheless be sentenced to probation? In other words, may a court sentence someone to probation when there is no sentence left to suspend? For example, suppose a Class A1, Prior Conviction Level II misdemeanant has 100 days of jail credit. The maximum permissible sentence in that grid cell is 75 days. Obviously if the court gave an active sentence—which is authorized in this C/I/A grid cell, or in any misdemeanor grid cell through the “active punishment exception” of G.S. 15A-1340.20(c1)—the jail credit would exceed the sentence and the defendant would be immediately released to time already served. But could the court put the person on probation? In my opinion, no. The sentencing judge is required to apply creditable jail time to the term of imprisonment regardless of the sentence disposition (active or probationary). G.S. 15-196.1; -196.4. And G.S. 15A-1342(c) provides that when a court places someone on probation, it “must impose a suspended sentence of imprisonment . . . that may be activated upon violation of conditions or probation.” If the all the imprisonment that could be served has already been served, there would be no suspended sentence to impose, and probation would appear to be impermissible. That makes sense as a practical matter, too—Community Corrections would have little leverage over an offender who has no time left hanging over his head. My answer would be the same for a felon. If the [...]